Committee Report Template

PP 2017/0139

SECOND REPORT OF THE SELECT COMMITTEE ON THE FUNCTIONING OF TYNWALD

LEGISLATIVE COUNCIL

2017-2018

SECOND REPORT OF THE SELECT COMMITTEE ON THE FUNCTIONING OF TYNWALD LEGISLATIVE COUNCIL 2017-2018

On 20th June 2017 it was resolved:

That a Select Committee of five members be appointed, comprising the Speaker as Chairman, one Member of the Council of Ministers (Mr Boot), one Member of the Legislative Council (Mr Cretney) and two other Members of the House of Keys (Dr Allinson and Mr Baker):

A) And that Tynwald approves the following and refers them to the above select committee to report with recommendations to Tynwald on the changes required for their implementation:

1. Recommendation 2 – Role of the Legislative Council:

a. That MLCs should not vote on measures which are exclusively on taxation or appropriation, and that the Clerk of Tynwald formulate a definition for Standing Orders;

b. That MLCs should not be Ministers, except in exceptional circumstances. [Report by October 2017]

2. Recommendation 3 – The Bishop:

a. That the Bishop should remain an MLC;

b. That Tynwald consider whether the Bishop should be included in the quorum of the Legislative Council and whether he should be allowed to abstain. [Report by October 2017]

3. Recommendation 4 – A Programme for Government:

a. That the first task of an Administration be to prepare and publish a Programme for Government,

b. The views of the public should be explicitly sought on this Programme; and

c. That thereafter Tynwald approval be required for such Programme on formulation, by means of a major debate, at which amendments to the Programme could be moved, and thereafter annually.

4. Recommendation 9 – Diversity:

a. That Tynwald address with energy the need to make its membership more diverse.

5. Recommendation 11 – Training:

a. That there should be continuous professional development training for Members of Tynwald.

B) And that Tynwald refers the following items to the select committee for further consideration to examine and report with recommendations on:

1. Recommendation 1 – Election of the Members of the Legislative Council (MLCs):

a. That the vote be open. [Report by October 2017]

2. Recommendation 2 - Role of the Legislative Council:

a. The circumstances (if any) where it would be appropriate to appoint Members of Legislative Council to membership of a Department. [Report by October 2017]

3. Recommendation 5 – Departmental Members:

a. That appointment as a Departmental Member be made only where it is clear that substantial responsibilities will be assumed in recognition of the salary enhancement; and

b. That the pay and enhancements for Members of Legislative Council be reviewed in light of their amended responsibilities. [(b) only Report by October 2017]

4. Recommendation 6 – Scrutiny:

a. That the scrutiny role continue to be delivered principally by four Standing Committees of Tynwald (“the four principal committees”), namely the Public Accounts Committee and, following reform, the Economic Policy Review Committee, the Economic and Infrastructure Review Committee and the Social Affairs Committee, as renamed;

b. That the members of the four principal committees be paid at the same level as Departmental members;

c. That the Programme for Government be the focus of the reformed Policy Review Committees; d. That the Terms of Reference of the reformed Policy Review Committees set down their key tasks and, if such Committees are able to examine Estimates, that the Terms of Reference of the Public Accounts Committee be amended so that the first limb refer to “accounts” rather than to “papers on public expenditure and estimates”;

e. That the Chairmen and Members of the four principal committees have appropriate familiarisation and training concerning the work of the Executive and best practice in scrutiny and questioning;

f. That consideration be given to supporting the work of Select Committees of Tynwald through external advice and expertise.

g. That the Tynwald Auditor General Act 2011 and the Tynwald Commissioner for Administration Act 2011 be brought into force.

5. Recommendation 7 – Legislation:

a. That, when leave is given to introduce a Bill, the House of Keys approve the proposed topic of the Bill as opposed to approving the Long Title; and that the Speaker certify the Long Title of the Bill as introduced as corresponding to the terms in which leave was given.

C) and that the Committee prioritise the work on Recommendations 1 & 2 (and other issues relating to Legislative Council) and to report back with recommendations on the election and role of the Legislative Council in October 2017, and by the December 2017 sitting on the remainder of the recommendations.

On 18th July 2017 it was further resolved:

That the Select Committee on the Functioning of Tynwald should have the authority to consider the following issues when deliberating:

1. Whether Members of Legislative Council should be able to vote on the appointment of the Chief Minister or on a vote of confidence in either the Chief Minister or the Council of Ministers;

2. Whether the Lord Bishop should retain his vote;

3. Whether a sitting Member of the House of Keys should be eligible to be nominated as a Member of Legislative Council;

4. And whether the following changes to draft Bill procedure be adopted: i. Draft legislation be automatically referred to the relevant principal committee instead of being subject to the existing formal consultation procedure; but that the relevant principal committee seek the views of the public; ii. In considering the draft Bill, the committee take evidence from experts in the field and from persons who may be affected by the proposed legislation; iii. Amendments to the Long Title of a Bill be authorized by an instruction moved immediately after second reading (which instruction would be open to amendment); iv. Amendments to the Long Title of a Bill be taken at the end of the clauses stage.

Committee Membership

The Hon J Watterson SHK (Rushen) (Chairman)

Hon G G Boot MHK (Glenfaba and Peel)

Mr D C Cretney MLC

Dr A J Allinson MHK (Ramsey)

Mr T S Baker MHK (Ayre and Michael)

Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Finch Road, Douglas, IM1 3PW (Tel: 01624 685520) or may be consulted at www.tynwald.org.im

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

Table of Contents

I. INTRODUCTION ...... 1

BACKGROUND 1

MATTERS COVERED 2

THE CURRENT FUNCTIONING OF TYNWALD 3

Recommendation 1 (Government minority) ...... 5

II. ENCOURAGEMENT OF DIVERSITY ...... 6

RECRUITMENT AND DIVERSITY 6

Recommendation 2 (Job description, etc. for MLCs) ...... 7

LIMITATIONS ON STANDING 7

Recommendation 3 (civil servants as candidates) ...... 8

THE PRESIDENT AND DIVERSITY 9

Recommendation 4 (President to promote diversity of candidates) ...... 9

ELECTION OF THE MEMBERS OF THE LEGISLATIVE COUNCIL 9

Recommendation 5 (election of Members of Legislative Council) ...... 10

MEMBERS OF THE HOUSE OF KEYS STANDING FOR ELECTION TO THE COUNCIL 10

Recommendation 6 (candidates for election as MLCs not to vote) ...... 11

III. PAY AND ENHANCEMENTS FOR MEMBERS OF LEGISLATIVE COUNCIL ...... 11

Recommendation 7 (pay review) ...... 12

IV. SERVICE IN GOVERNMENT ...... 12

SERVICE AS MINISTERS 14

Recommendation 8 (MLCs as Ministers) ...... 14

SERVICE AS MEMBERS OF DEPARTMENTS 14

Recommendation 9 (MLCs as members of Departments)...... 18

V. WHAT LEGISLATIVE COUNCIL CAN VOTE ON ...... 19

VOTING – CHIEF MINISTER 19

Recommendation 10 (Election of Chief Minister)...... 20

VOTING - FINANCIAL 20

Recommendation 11 (votes on taxation and appropriation) ...... 21 Recommendation 12 (President to be arbiter for Keys-only votes) ...... 22

Recommendation 13 (Standing Order for Keys-only votes) ...... 22

VI. THE BISHOP’S ROLE ...... 22

QUORUM – GENERAL 22

QUORUM DURING LEGISLATIVE COUNCIL ELECTIONS – TYNWALD COURT 23

QUORUM DURING LEGISLATIVE COUNCIL ELECTIONS – LEGISLATIVE COUNCIL (SITTING SEPARATELY) 24

ABSTENTION 24

CONCLUSION 25

VII. CONCLUSION ...... 25

VIII. SUMMARY OF RECOMMENDATIONS ...... 28

Recommendation 1 (Government minority) ...... 28

Recommendation 2 (Job description, etc. for MLCs) ...... 28

Recommendation 3 (civil servants as candidates) ...... 29

Recommendation 4 (President to promote diversity of candidates) ...... 29

Recommendation 5 (election of Members of Legislative Council) ...... 30

Recommendation 6 (candidates for election as MLCs not to vote) ...... 30

Recommendation 7 (pay review) ...... 30

Recommendation 8 (MLCs as Ministers) ...... 30

Recommendation 9 (MLCs as members of Departments)...... 30

Recommendation 10 (Election of Chief Minister)...... 31

Recommendation 11 (votes on taxation and appropriation) ...... 31

Recommendation 12 (President to be arbiter for Keys-only votes) ...... 31

Recommendation 13 (Standing Order for Keys-only votes) ...... 31

ANNEX I ......

LISVANE RECOMMENDATIONS 35

ANNEX II ......

MEMBERS OF TYNWALD - POSITIONS HELD 43

ANNEX III ......

REPORT OF THE PANEL APPOINTED TO ASSESS THE ISLE OF MAN PARLIAMENTARY SYSTEM AGAINST THE COMMONWEALTH PARLIAMENTARY ASSOCIATION BENCHMARKS FOR DEMOCRATIC LEGISLATURES 47 WRITTEN EVIDENCE: MEMBERS’ SUBMISSIONS ...... 71

DAVID ASHFORD MHK 75

DAPHNE CAINE MHK 79

BILL HENDERSON MLC 83

LAWRIE HOOPER MHK 179

JANE POOLE-WILSON MLC 185

BILL SHIMMINS MHK 195

DAVID ANDERSON MLC 201

DAVID CRETNEY MLC 205

GEOFF CORKISH MLC 209

BILL HENDERSON MLC 213

JANE POOLE-WILSON MLC 223

MICHAEL COLEMAN MLC 227

JUAN TURNER MLC 231

To: The Hon Stephen C Rodan, President of Tynwald,

and the Hon Council and Keys in Tynwald assembled

SECOND REPORT OF THE SELECT COMMITTEE ON THE FUNCTIONING OF TYNWALD LEGISLATIVE COUNCIL 2017-2018

I. INTRODUCTION

Background

1. As we reported in our Interim Report in July 2017, the genesis of this Report is as follows. In June 2015 Tynwald resolved:

That Tynwald is of the opinion that the Isle of Man Government should establish an independent review using its powers under the Inquiries (Evidence) Act 2003 to examine the functioning of the branches of Tynwald and to consider options for reform.1

2. Lord Lisvane was appointed on 26th April 2016 to carry out the inquiry. He reported in June 2016, having taken a wide range of evidence from Members of Tynwald; the Clerk of Tynwald and other officers; and the general public.

3. The Lisvane Review was debated in July 2016, when Tynwald resolved (on an amended motion):

1 Hansard 1726, T132

That Tynwald receives the Review of the Functioning of Tynwald [GD No 2016/0047]; notes the recommendations contained therein; and resolves that the recommendations be submitted to Tynwald for debate and decision in April 2017.2

4. The planned debate in April was delayed to June 20173 when Tynwald debated the recommendations on a motion in the name of the Chief Minister, which was comprehensively amended. The amended motion which gives this Committee its remit is set out at the front of this Report.

5. The precise terms of our remit were closely debated. We have therefore had to take a cautious approach to discussing matters in order to acknowledge the unusually detailed definition of the remit. Apart from the limited extension of the remit by way of an Instruction to the Committee in July to allow us to consider the issues in a wider context, the matters reported on are a faithful reflection of our original, limited remit.

6. The Committee reported to July 2017 Tynwald:

 to inform Members and the public about the precise terms of the remit, which was the result of a complex series of votes; and  to set out the general work plan of the Committee.

7. The work of the Committee is in two parts: the matters to be reported on in October and the matters to be reported on by December. This Report focuses on the matters to be reported on in October, essentially the powers and duties of Legislative Council, but also comments on other, related matters such as encouragement of diversity in recruitment of Members of the Legislative Council.

Matters covered

8. This Report deals with the following issues which have received Tynwald approval in outline:

 that MLCs should not vote on measures which are exclusively on taxation or appropriation, and that the Clerk of Tynwald formulates a definition for Standing Orders;  that MLCs should not be Ministers, unless in exceptional circumstances;  that the Bishop should remain an MLC, but that Tynwald should consider whether the Bishop should be included in the quorum of the Legislative Council and whether he should be allowed to abstain.

2 Hansard 2054, T133 3 Hansard 742, T134

9. The Report also examines matters referred to the Committee for further consideration, to examine and report with recommendations without any final approval:

 that the votes on election of the Members of the Legislative Council be open;  the circumstances (if any) where it would be appropriate to appoint Members of Legislative Council to membership of a Department;  that the pay and enhancements for Members of Legislative Council be reviewed in light of their amended responsibilities.

10. The matters included in the July Instruction were available for consideration to allow us to consider the wider picture.

11. We examine five principal matters: what Legislative Council can vote on; service in Government; election of the Members of Legislative Council; pay and enhancements for Members of Legislative Council; and the role of the Lord Bishop. All of these matters we considered in the context of improving diversity, which we have taken as a significant recommendation of the Lisvane Report to take forward. Encouragement of diversity is the prism through which we have viewed most of the issues before us.

The current functioning of Tynwald

12. Tynwald is made up of two Branches: the House of Keys and Legislative Council. They meet to decide policy and financial matters as well as appointments, secondary legislation and election of the Chief Minister. They sit separately to deal with primary legislation, and both Branches must agree on the terms of a Bill before it is submitted for Royal Assent. Further, a Bill must be signed in Tynwald by a quorum of both Branches before Royal Assent can be given and then announced. There is a statutory procedure for Bills to receive Royal Assent of the Keys-only, subject to a requirement for an enhanced majority, which at the time of writing has never been used.4

13. The Legislative Council has accepted its changed status from housing the executive in the 1970s to becoming a revising chamber from the mid-1980s. This has happened smoothly and almost unnoticeably, and there is no doubt that the Members of the Legislative Council acknowledge the primacy of the House of Keys, and the secondary and limited nature of their own mandate. It is now generally accepted normal practice that Ministers are Members of the House of Keys.

4 The procedure allows 17 Members of the House of Keys to vote for a motion to place a Bill before Tynwald for signature, without the consent of the Legislative Council, if the Bill has not been passed by the Council within 12 months beginning with the first sitting of the Council after the date on which it was sent to the Council, leaving out of account the months of July, August and September. A Bill so placed on the order paper of Tynwald and signed by at least 17 Members of the House of Keys shall be sent for Royal Assent: see section 1, Constitution Act 2006. No amendment of the Bill is possible.

14. Our deliberations have made us aware that the current system functions very well in many areas. It is of vital importance that no change should be made unless there is a clear basis for it and that the possible consequences of such change should be clearly understood. Constitutional change is notoriously difficult and there is always a trap for the unwary of unintended consequences. It is better to consider matters fully and get things right than to rush to judgement and make a mistake that may be hard to rectify. That said, there is a strong appetite for reform of the legislature. Although the Report by Lord Lisvane was welcomed and there was agreement with some of his conclusions he was clear that the Report should not be considered as a whole but as a number of separate parts. We have found a great deal of consensus over many areas of reform which are outlined in this Report.

15. Contrary to Lord Lisvane’s conclusions, we do not think that the present system of Departmental membership is unsustainable. We believe that he was wrong in his assessment. His Review was speedily conducted, but it was not based on long experience of Tynwald debates. Neither did the Review involve any observation of the internal workings of Government Departments, Boards or Offices. It is an acknowledged strength of our system that it allows criticism of the Government without fear of the loss of a job in a Department (and therefore pay). The apparent lack of formal separation of powers conceals a strong tradition of independence among Members of Tynwald that was not sufficiently reflected in Lord Lisvane’s Report; neither did he refer to the non-existence of any party-based ‘whip’ in Government which allows considerable latitude for Members of Tynwald who have Government jobs to oppose Government policy. We believe that the wide participation of Tynwald Members in Government must be balanced by an understanding that they still have a duty to effectively scrutinise, and may criticise, policies in areas of Government that they are not directly involved in. To erode this must of necessity lead to a more formalized scrutiny or opposition structure which we do not believe suits the collaborative nature of Tynwald.

16. We are also aware of the need to select the best people for particular jobs, rather than automatically to regard election to one Branch as a qualification (subject to the agreed restriction on ministerial and other appointments discussed below). This is in line with appointments elsewhere in the public service. We have to recognize the limited range of candidates for appointment in this jurisdiction.

17. Confining Members of Legislative Council to a scrutiny role risks creating an internal, permanent opposition and a focus for malcontents; this would damage the consensus form of politics on the Island and create unnecessary political strife. Opposition for its own sake would replace genuine agreement or disagreement based on the merits of the issue at hand. Any change which would tend to create a permanent split between the House of Keys and Legislative Council must be actively discouraged.

18. We concluded that every Member of Tynwald should have a role in Tynwald, but not necessarily in Government and that the consensus form of politics should be preserved, with the culture of general participation being a main element of that.

19. During our deliberations one significant point emerged that was not adequately reflected in debate previously. That was the effect of some of the proposed changes on the power of the Government in Tynwald and the effectiveness of scrutiny and even opposition. We are especially aware of the impact that restrictions on the voting power of Legislative Council would have on the balance between the voting bloc of the Council of Ministers with Members of a specific Department and the rest of the House of Keys.

Recommendation 1 (Government minority)

The Government must not automatically have a majority in Tynwald or the House of Keys as a result of the number of Ministers and Departmental Members present there. This has never previously been articulated, but there has long been an understanding that the Government ‘block vote’ on any issue should be a minority in Tynwald.

20. Significant changes to the division of membership of Departments between the Branches runs the risk of creating a solid and permanent majority for the Government on every issue in the House of Keys and therefore, ultimately, Tynwald. It creates the likelihood of turning the Legislative Council from a body which supports the constitutional process into a body which opposes the Government routinely. Nothing should be done to institutionalize opposition in Tynwald and undermine the robust questioning of Government within the context of consensus politics.

21. Completely restricting membership of the Council of Ministers and Departments to Members of the House of Keys risks creating unintended consequences for the administration of Government.

22. We agreed that much of the debate hitherto about the role of Legislative Council was couched in a negative tone; it was about what Members of Legislative Council should be expected not to do, rather than what they were for. We wish to redress this balance and focus more positively on what Legislative Council has done in the past and can do in the future.

23. We wish to acknowledge the important role of Members of Legislative Council in the political life of the Island, both in Tynwald and Government. They are a resource which should be valued; their collective and individual contribution to political debate has encouraged the consensus form of politics that has allowed the Island to prosper. They have brought an invaluable range of skills and experience to political discussion.

II. ENCOURAGEMENT OF DIVERSITY

Recruitment and Diversity

24. Lord Lisvane emphasized the importance of increasing diversity among the membership of Tynwald. The new method of electing Members of the Legislative Council, introduced in 2017, provides a starting point for engaging with this topic more actively than before.5

25. It is hard to overemphasize the importance of achieving greater diversity in the membership of Tynwald. This goes to the essence of how we represent the community and will influence the trust which the community is able to place in us. If, as a Committee, we can successfully identify ways of improving the diversity of recruitment to Legislative Council we would count that as among our most significant achievements.

26. Membership of Legislative Council should be diverse, with no one on the Island being ruled out, including sitting or former Members of the House of Keys. It is useful to have experienced Members of Tynwald in Legislative Council with ministerial or other experience in the House of Keys, although this is always secondary to the principle that the best candidate should be chosen. We welcome the contribution which experienced Members of Tynwald can make to guiding newer Members and also to expressing views based on their wide knowledge of public affairs both on the Island and off it. In the past, Members of Tynwald have built up extensive contacts off-Island which have stood the Island in good stead.

27. The diversity of candidates for election to Legislative Council is not always as wide as could be wished. The best outcome normally would be a balanced Legislative Council with some experienced Members (whether in a minority or not) but a significant number of new Members. The likelihood of Members of the House of Keys being elected to the Council in the next two rounds of elections is small, given that so many of the current Members of the House are new, and others are in ministerial posts.

28. The urgency of defining the role of Members of the Legislative Council is high, as there will be elections in 2018. Prospective candidates will be considering now whether to offer themselves for election and we must create a realistic – and attractive – description of the role. We believe that having a coherent statement of the requirements of the job will encourage a wider range of people to put their names forward. It will also provide Members of the House of Keys with a clear yardstick against which to measure the competing claims of candidates.

5 The system for electing Members of Legislative Council was amended by the Elections to Legislative Council Act 2017 and subsequent changes to House of Keys Standing Orders.

29. We have agreed an initial draft job description for a Member of Legislative Council. We realize that this may need to be amended if particular changes are opted for in terms of what Members of Legislative Council can vote on or how they can serve in Government, as discussed below.

Recommendation 2 (Job description, etc. for MLCs)

We recommend that the following job description for Members of Legislative Council be adopted:

Job description

• Members of Legislative Council are a fundamental part of Tynwald. They also play an active role in Government of the Island; they may be called on to take roles in Government or in Tynwald.

• Members of Legislative Council are an important resource, supporting the publicly elected Members of the House of Keys in their Governmental and parliamentary roles. They provide a distinct and influential voice in political life on the Island, based on an understanding and experience of Island life.

• Members of Legislative Council take part in debates and votes in Legislative Council and Tynwald, so an ability to express ideas in a public forum is necessary.

• Members of Legislative Council promote, examine and scrutinise legislation, so an ability to read legislation in detail is necessary (but tuition is provided).

• Members of Legislative Council scrutinise Government in Legislative Council, Tynwald and Committees in debate and through questions and motions.

• Members of Legislative Council provide advocacy for individual members of the public.

• Members of Legislative Council exercise a consultative role in the course of which they improve lines of communication between Departments.

• Members of Legislative Council take part in the roles of Government and Tynwald by assisting with maintaining links with interest groups on and off-Island.

Limitations on standing

30. The current law relating to who can stand as a Member of Legislative Council is a century old and reflects the structure of Government at the time. Section 12 of the Isle of Man Constitution Amendment Act 1919 provides:

Qualification of elected member

A person to be qualified as an elected member must be not less than twenty-one years of age, and must be, at the time of his election, and must, so long as he continues in office by virtue of such election,

(a) be resident within this Isle; and

(b) not being a person in receipt of a salary payable by the Imperial or Insular Government.

31. This rule needs to be reconsidered, but at present to do so in detail lies outside our remit. We mention this in the context of increasing diversity. One clear matter for consideration is the minimum age for standing for election; twenty-one was the age of majority when the law was passed but it no longer is. Whether the minimum age should be the same as the voting age or the age of majority is a matter for debate and is not one on which we have been asked to form an opinion.

32. We also note the rule restricts the rights of civil servants and others on a Government salary to stand for election and keep their jobs. This has been interpreted as requiring candidates to resign from their posts before they offer themselves for election, since a candidate must be qualified for appointment if their candidacy is to be considered valid.

33. We ask for this matter to be referred to the Tynwald Standing Orders Committee to pursue amendments to the law to be proposed to allow civil servants and others on Government salaries to be on the same footing as all other residents of the Island so that they may offer themselves for election to either Branch without having to resign first, and that the minimum age for standing for election be re-considered.

Recommendation 3 (civil servants as candidates)

The Tynwald Standing Orders Committee should examine and report on proposed amendments to the Isle of Man Constitution Acts to:

a) revise the law on qualification as a candidate for election to either Branch of Tynwald to amend the minimum age for candidates and to allow those in receipt of Government salaries to be on the same footing as all other residents of the Island so that they may offer themselves for election to either Branch without having to resign first;

b) consolidate the 1919, 1961, 1971 and 2006 Constitution Acts;

c) propose to Tynwald any other amendments to the law on candidates and any other amendments to the Constitution Acts that may appear necessary.

The President and diversity

34. Diversity requires a body or person whose role will be to promote diversity at all times, not just before an election. Tynwald needs to encourage greater participation in elections for Legislative Council among those who are not known to Members of Tynwald or who otherwise feel less able to put themselves forward. The perception of Tynwald being a club is to be combatted actively; it must be made easier for anyone to offer themselves as a candidate. The first step is to encourage prospective candidates to come to speak to a knowledgeable person about how to make oneself known to the electorate, the House of Keys' Members. The President is the ideal person for this role: he has no personal vote; he will be able to guide candidates about the requirements of the job; and he will be able to assist in whatever is needed to enable candidates with no previous knowledge to learn about Tynwald and to get to know Members and staff.

35. The President should be in charge of recruitment drives for Legislative Council. We briefly discussed some possible ideas:

 creating a YouTube video about being a Member of Legislative Council;  being a first point of call for prospective candidates;  introducing prospective candidates to Members;  having an open day six months or so before the next Legislative Council elections for prospective candidates;  setting up a drop-box for CVs and personal statements from prospective candidates;  having a tour day for prospective candidates;  publishing the job description, etc. on the website permanently;  distributing CVs/personal statements to Members, if required.

These are all matters which the President could explore in his expanded role, with the support of the Clerk of Tynwald.

The President has been consulted and he is content to accept this role, if Tynwald agrees.

Recommendation 4 (President to promote diversity of candidates)

The President of Tynwald should be tasked with encouraging a wide variety of candidates and to improve the accessibility of membership of Legislative Council.

Election of the Members of the Legislative Council

36. One of the Lisvane recommendations that Tynwald has already acted on is the proposal for votes in elections to Legislative Council to be public. Since the Lisvane Report was published the House has agreed to the principle of establishing the system for electing Members of Legislative Council in Standing Orders, rather than in statute as before. This was the result of work done by the House of Keys Standing Orders Committee. Primary

legislation was needed to bring about this change, and Tynwald agreed the Elections to Legislative Council Act 2017 to achieve this. This Act received Royal Assent on 21st March.

37. The Act was brought into effect by Order of Mr Speaker once the House agreed the necessary changes to Standing Orders to provide for elections to Legislative Council. The House unanimously agreed that the election should be an open vote, modified to the extent that the results are made known at the end of each round of votes.

38. One of the innovations brought in by the new Standing Orders is that Mr Speaker is mandated to organize at least one joint meeting between candidates and Members at the earliest opportunity after the close of nominations to ensure that all candidates are known to the House ahead of the election.

39. We do not need to make any change to the current arrangements for electing Members of Legislative Council in order to ensure that the vote on the candidates is open. Accordingly, we make no specific recommendation on this matter.

40. We note that the new process was carried out successfully in May 2017. That was for a by-election involving one seat; we look forward to seeing how the new system works when there are four seats to be filled. Any further reform is a matter for the House of Keys Standing Orders Committee.

Recommendation 5 (election of Members of Legislative Council)

We recommend that Tynwald refers to the House of Keys Standing Orders Committee the matter of the efficacy of the process for electing Members of the Legislative Council, to be reviewed after the Legislative Council elections in 2018.

Members of the House of Keys standing for election to the Council

41. The eligibility of serving Members of the House of Keys for election to Legislative Council is not within our core remit. We make no recommendation about this in principle. It is, however, part of the extension to our remit in the July Instruction that we are able to consider the question as part of our general deliberations. Without any change to primary legislation, it will continue to be the case that serving Members of the House of Keys are eligible for election to Legislative Council. As such we considered the mechanism for election in the context of our interest in increasing scope for diversity of membership of Legislative Council.

42. One continuing matter of criticism of the election process of Members of Legislative Council is that it is a club for retired Members of the House of Keys: “The revolving door principle.” Although there is a value in having a mixture of experienced and new Members of the Legislative Council, we do believe that the election system should be changed to allow for a level playing field between candidates, whether they are serving Members of the House of Keys or not. At present, Members of the House of Keys can vote

for themselves if they are candidates. This is clearly unfair. Members of the House of Keys should recuse themselves from voting in Legislative Council elections where they are candidates and the Standing Orders of the House of Keys should have that principle referred to it for action.

Recommendation 6 (candidates for election as MLCs not to vote)

Members of the House of Keys should recuse themselves from debate and votes if they are candidates for election to Legislative Council; and Tynwald should refer the matter of Members of the House of Keys recusing themselves to the House of Keys Standing Orders Committee for consideration. III. PAY AND ENHANCEMENTS FOR MEMBERS OF LEGISLATIVE COUNCIL

43. We were asked to consider the basis of a review of the pay and enhancements for Members of Legislative Council in the light of their amended responsibilities. This is a matter of vital importance and has a major bearing on the question of diversity. The ability to serve in Tynwald is a right of all residents of the Island. It must never be restricted to those who can afford it. This means making it financially possible for anyone (even if it involves some financial cost) to serve.

44. If we are serious about encouraging diversity we must ensure that the job of a Member of the Legislative Council is regarded as being a full-time job, since not everyone can simply ask for time off. The salary and benefits should be sufficient to allow everyone to be able to serve (Tynwald membership must not be restricted to the better-off).

45. The salary and benefits should be at a level to attract a diverse collection of community members. It is a very difficult task to obtain agreement on what is a reasonable level of pay for any job. This involves an element of subjectivity. However, the principle of tying the pay of Members of Tynwald to the civil service grades has worked to provide stability in pay at a reasonable level and to limit expenditure appropriately. We believe that it is a strength of our system that pay is tied to a civil service grade, and that politicians do not routinely vote on their own pay.

46. We do not regard it as acceptable for any pay amendments to result in an increase in cost to the taxpayer. Any change to the structure for pay and allowances should be cost- neutral.

47. Further discussion on pay should be related to actual workload but this must be finally defined before any work can be started on a review of pay.

Recommendation 7 (pay review)

That in any examination of the pay and enhancements of Legislative Council Members the following principles should be observed:

• the salary and benefits must be sufficient to allow everyone to be able to serve;

• the salary and benefits must be at a level to attract a diverse collection of community members;

 an enhanced role in scrutiny should be recognized; and

 any change to the structure for pay and allowances must not result in an increase in overall costs of Members’ remuneration. IV. SERVICE IN GOVERNMENT

48. The Chief Minister nominates the other Members of the Council of Ministers from among the Members of Tynwald. Like the Chief Minister they are appointed by the Lieutenant Governor.6 The Chief Minister assigns Ministers to Departments.7

49. Members of Departments are appointed by the Council of Ministers.8

50. Other posts on Statutory Boards and other Offices set up by statutory provisions are filled in accordance with those provisions. These vary and include requiring election by Tynwald, or nomination and/or appointment by the Council of Ministers, and/or on nomination of the Appointments Commission.

51. Council of Ministers Committees may be appointed by the Chief Minister and/or the Council of Ministers; they may include Members who are not Ministers, and Government and non-Government persons with knowledge and expertise relevant to the remit of the Committee. Such Committees may be either permanent or temporary Committees.

52. Lord Lisvane:

To fresh eyes (but perhaps also to others) the system of Departmental Members is extraordinary...9

I do not believe that the system of Departmental Members is remotely sustainable. The issue of patronage, and the perception or reality that Members are receiving significant

6 Council of Ministers Act 1990, section 3 7 Council of Ministers Act 1990, section 5 8 Government Departments Act 1987, section 2 9 Lisvane Report, Chapter 6, paragraph 18 (page 42).

salary enhancements for a role that at worst may be unnecessary, is a reputational liability...10

This lack of evident separation of roles between Parliament and the Executive means that the Isle of Man may be seen to fall short of the highest standards of parliamentary governance. This has wider reputational risks...11

I therefore recommend that the present extensive system of Departmental Members should end. Ministers should be capable of running their Departments with significantly less political support, and they should empower and support officers to a much greater extent. There should be no more than one Departmental Member per Department, and an appointment should be made only where it is clear that substantial responsibilities will be assumed in recognition of the salary enhancement.12

53. The recommendations on membership of Departments were closely linked with the view of enhanced scrutiny roles for non-Departmental Members of Tynwald (including especially Members of Legislative Council).

54. Lord Lisvane recommended:

As is the case at present, only exceptionally should MLCs be Ministers. To avoid any inhibition on their scrutiny role, they should not be Departmental Members.13

55. It is important to note in this context that Tynwald firmly rejected the Lisvane proposal that there be only one Departmental Member per Department, but supported the proposition that appointment as a Departmental Member be only made where it is clear that substantial responsibilities will be assumed in recognition of the salary enhancement. We agree with Tynwald’s conclusion entirely.

56. We are particularly aware of the dangers of reducing the work and influence of Members of Tynwald in Departments. To do so would mean that civil servants would replace Members of Tynwald in many important decision-making roles and this would not enhance the publicly accountable control which is a strong element of the Island’s Government system. The general aim of the proposed reforms is to increase accountability to Tynwald and thereby the public, not to reduce it.

57. There is a clear convention that parliamentary service (for example on Committees) takes primacy over Government work and that on the whole these have co-existed well since the advent of the ministerial system. We conclude that it is up to Members to balance

10 Lisvane Report, Chapter 6, paragraph 29 (page 45) 11 Lisvane Report, Chapter 6, paragraph 31 (page 45) 12 Lisvane Report, Chapter 6, paragraph 32 (page 45) 13 Lisvane Report, Chapter 5, paragraph 31 (page 34)

their service to Government within the time they have available, meaning that an arbitrary cap on Departmental Members is unhelpful.

Service as Ministers

58. The proposition that MLCs should not be Ministers, except in exceptional circumstances, was approved by Tynwald in setting our remit and we take it as a given.

59. The right to nominate Ministers is a statutory one and the provision entitling the Chief Minster to nominate Ministers can only be formally amended by primary legislation, amending the Council of Ministers Act 1990. Statute law cannot be amended by resolution. Any attempt to formalize a rule and to define the “exceptional circumstances” when a Member of Legislative Council could be appointed as a Minister would require primary legislation.

60. We note that the agreed position of Tynwald is not that an absolute bar be created but the view of Lord Lisvane that, “As is the case at present, only exceptionally should MLCs be Ministers” should be adopted. This requires no formal change and could be achieved by a resolution which expressed an opinion that only exceptionally should MLCs be Ministers, and that it be appropriate practice that when the Chief Minster does make such an appointment there should be a Statement in Tynwald justifying the appointment which will, as usual, be open to questions.

Recommendation 8 (MLCs as Ministers)

We recommend that Tynwald adopt the following resolution:

That Tynwald is of the opinion that the Chief Minster should not appoint a Member of Legislative Council as a Minister unless in exceptional circumstances and that any such appointment should be explained by way of a Statement to Tynwald.

Service as Members of Departments

61. We were asked to consider the circumstances (if any) where it would be appropriate to appoint Members of Legislative Council to membership of a Department. Again, this is a statutory right which cannot be formally amended by resolution.

62. The appointment of Members of Legislative Council as Members of Departments is likely to be much more often required than their appointment as Ministers. There will be occasions when a Member of Legislative Council will have special skills and experience which would be of great use to the public service. The choice of who should serve is a matter for the Council of Ministers.

63. The question of when the appointment of Members of Legislative Council as Members of Departments is appropriate affects the House of Keys and its operation as well as Legislative Council. There is also a potential major impact on the working of Government.

The added responsibilities to Members of the House of Keys consequent on the removal of Members of Legislative Council from Departments would mean that Members of the Keys would either have more Government roles and fewer scrutiny roles or would devolve responsibility to civil servants, as we note above.

64. At present there are eight Departments and one Chief Minister making up the Council of Ministers. There is provision for the Chief Minister to appoint up to nine Ministers. There are currently twenty-six Members with Department roles (some Members having more than one).

Cabinet Office has one Departmental Member (an MHK);14

Department of Economic Development has five Departmental Members (four MHKs, one MLC);

Department of Education and Children has three Departmental Members (two MHKs, one MLC);

Department of Environment, Food and Agriculture has three Departmental Members (two MHKs, one MLC);

Department of Health and Social Care has three Departmental Members (all MHKs);

Department of Home Affairs has four Departmental Members (two MHKs, two MLCs);

Department of Infrastructure has four Departmental Members (three MHKs, one MLC); and

Treasury has three Departmental Members (two MHKS; one MLC).

The Committee has no mandate to consider the appointment of Members of Legislative Council to roles on Statutory Boards or Offices, but similar considerations apply. This would involve a further nine posts.15

65. There are three main options which we considered:

(a) Members of Legislative Council should never serve as Departmental Members;

(b) Members of Legislative Council should serve in Departments in an advisory capacity only, without the option to serve in a delegated capacity under Section 3(2) of the Government Departments Act; or

14 Technically, the Chief Minister is the Cabinet Office Minister, and whilst Mr Thomas is a Minister he is a Department Member of the Cabinet Office, but for practical purposes we count only one Departmental Member in that Department. 15 Annex II

66. If Members of Legislative Council never served in Departments, there would be the following results:

(a) The workload of Members of the House of Keys would substantially increase (even though not all the roles taken by Members of Legislative Council would necessarily be replaced by Members of the House of Keys serving in their stead). This would compromise the ability of Members of Departments to control matters to the extent that they do now and would result in officers being used to fill the gaps.

(b) A greater level of service in Departments by Members of the House of Keys would affect the ability of Tynwald to fill scrutiny committees with Members of the House of Keys. (The four Policy Review Committees require eleven Members16; of twenty- four Members, up to ten would be in Council of Ministers, leaving fourteen to serve as Speaker and Department Members, as well as serving on Boards and Offices or chairing the Public Service Commission, which would restrict the suitability further of particular Members to serve on departmentally related Committees).17

(c) A Government populated exclusively by Members of the House of Keys would have a serious impact on opposition to Government in the House of Keys. If nine Ministers were appointed, this would create a solid block of ten Council of Ministers’ votes which, when backed by relevant Departmental Members’ votes, might do much to create the situation attributed to Tynwald by Lord Lisvane that there was insufficient separation between Government and Tynwald, as the Government would have an in-built control of the House without having the compensatory attribute of being a political party that had won an election. Effective opposition in the House of Keys and Tynwald to Government measures would be harder and Legislative Council would tend to be the voice of opposition.

One way to relieve this problem would be to have fewer Members of Departments. This would, however, exacerbate the problems of retaining full political control in Departments, as mentioned above. Power would drift away from publicly elected Members as a result. Although some Members have indicated a willingness to see fewer Members of Departments we caution against rigidly pursuing such a course

16 Although it is possible to appoint a member to more than one of these Committees. 17 Public Accounts Committee has a Chairman, Vice-Chairman and three Members who serve as the Chairmen of the Policy Review Committees; there are three Policy Review Committees, each with three Members

in the wake of trying to achieve an unrelated outcome. If Tynwald decides that there should be fewer Members of Departments, the change ought to be brought about on its own merits and not as a side effect of other changes.

(d) There might be difficulties in getting Government Bills through Legislative Council as there would be no Government Members to move them. It would not be appropriate to use the Attorney General for this purpose, as he is an appointee.

(e) There would be a serious loss of skills and experience among the Members of Legislative Council.

This change would require primary legislation.

67. If Members of Legislative Council were to serve in Departments only in an advisory capacity, the Committee will need to consider the first two points (a) and (b) mentioned above and possibly the third (c). This option would place Members of Legislative Council in the unique position of being the only inhabitants of the Island who cannot have a delegated function as the law at present allows the Minister to choose any person, whether an official or Member of Tynwald or any other person, to exercise delegated functions.

This change would require primary legislation.

68. In the case of Members of Legislative Council serving in Departments either sometimes or regularly, there are two subsidiary options which the Committee considered:

(a) A declaratory resolution calling for a Statement explaining the appointment of a Member of Legislative Council in the same way as a Statement explaining the appointment of a Member of Legislative Council as a Minister, which would be flexible while establishing the principle. It would provide an opportunity to justify why the Member was needed to carry out substantial work. It would not require primary legislation. Or

(b) A declaratory resolution expressly accepting the valued work by Members of Legislative Council in Departments and an acceptance that that work should continue as now (consciously maintaining the status quo).

69. We favour option (a). We believe that, although the contribution of Members of Legislative Council is valuable, where MLCs are appointed to Departments precedence should be given to publicly elected Members in exercising delegated functions. If no Member of the House of Keys is suitable or available for exercising such powers another Minister should be chosen.

70. We consider that a Statement explaining the appointment of a Member of Legislative Council in the same way a Statement explaining the appointment of a Member of Legislative Council as a Minister would be an appropriate mechanism, which would be flexible while establishing the principle. It would provide an opportunity to explain why the Member was needed to carry out substantial work.

71. We agreed the following principles:

 that Government should have to work for votes, they should not have an automatic majority;  consensus Government should be preserved; and  it is beneficial to have an MLC in a Department to be able to take legislation through.

It was not a principle that there should be a role for everyone in Government, but that everyone should have a role in Tynwald, whether in Government or on a Committee.

72. We realize that there is a divergence of view in Tynwald about the extent to which Members of Legislative Council should be Members of Departments and on what basis. We have put forward a recommendation in an unusual form which offers a series of alternative options. This will allow Tynwald to vote on the propositions in turn, until the winning proposition is agreed, thus expressing a clear choice about the scope of work of Members of Legislative Council. We have attempted to be as neutral as possible in selecting the order for putting the options for change. We agreed that we would recommend the various options in the order of greatest change, taking the option for change which represents the most radical recommendation first on the basis that if one option succeeds then the others all fall immediately. This will reduce the need for tactical voting and reflect more straightforwardly the will of Tynwald.

Recommendation 9 (MLCs as members of Departments)

The Committee recommends the following alternative recommendations:

That Tynwald is of the opinion that:

(a) Council of Ministers should introduce legislation to provide that Members of Legislative Council should never serve as Departmental Members.

(In the alternative, if the above recommendation fails)

(b) Council of Ministers should introduce legislation to provide that Members of Legislative Council should serve in Departments only in an advisory capacity, without the power to serve in a delegated function.

(In the alternative, if the above recommendation fails)

(c) The practice of using Members of Legislative Council as Departmental Members should continue, but that Members of the House of Keys and Ministers should take

precedence when delegated functions are allocated to Members of Departments. Members of Legislative Council should not exercise delegated functions unless in exceptional circumstances.

(In the alternative, if the above recommendation fails)

(d) The Council of Ministers should only appoint a Member of Legislative Council as a Member of a Department in exceptional circumstances and that the appointment should be explained by way of a Statement to Tynwald.

(In the alternative, if the above recommendation fails)

(e) The practice of using Members of Legislative Council as Departmental Members should continue unchanged.

V. WHAT LEGISLATIVE COUNCIL CAN VOTE ON

Voting – Chief Minister

73. The two principal issues which have been discussed relating to what Members of Legislative Council can vote on are financial matters and election of the Chief Minster (and, as a sub-set of that, votes of confidence). The voting for Chief Minister and on confidence motions is not part of our core remit, although it is part of the Instruction to the Committee in July which allows us to take the matter into account as part of the wider context.

74. We are concerned that we have not had the opportunity to deliberate fully on this important area. The change in principle to give the House of Keys exclusive rights to elect the Chief Minister appears to have the general support of the House of Keys; informal notice was given in debate that it is intended to bring back the Council of Ministers (Amendment) Bill 2016, which was passed by the House of Keys before the General Election, and to ask the House of Keys to pass the Bill in its unamended form using the single-Branch procedure under the Constitution Act 2006.

75. We believe that it would be a serious error of judgement to pass this Bill in a hurry, in a single vote, without opportunity for the current House of Keys to amend the Bill. We note that the Bill has no provision covering a persistently tied vote. A tied vote would therefore be decided on the Speaker’s casting vote, as is mandated in the House of Keys' procedure,

if the Bill is passed in its current form.18 This matter is complex and requires examination by this Committee, which would allow a better thought out solution to be put to Tynwald for agreement in principle and pave the way for better legislation. There is no reason to rush this reform, as the procedure is not scheduled to be used until after the 2021 General Election.

Recommendation 10 (Election of Chief Minister)

That Tynwald refers the matter of the method of electing the Chief Minster to the Select Committee on the Functioning of Tynwald for consideration and report by February 2018.

Voting - financial

76. Lord Lisvane’s recommendation that Members of Legislative Council should not vote on measures which are exclusively on taxation or appropriation, and that the Clerk of Tynwald should formulate a definition for Standing Orders was referred to us on the basis that the recommendation was approved and that we were to formulate a way of delivering this change.

77. The authority to levy taxes and to appropriate funds is statutory. Therefore, change must be by primary legislation, although it is possible to reflect the statutory provision in Standing Orders.

78. We note that the word “exclusively” is used by Lord Lisvane. In other words, the motion restricted to a vote by Members of the House of Keys would only be about the narrow levying of taxes and the appropriation of funds for an already agreed purpose.

79. The current system for agreeing the Budget and appropriation votes should be split into two distinct parts: the policy decision, which is a matter for Tynwald, and the taxation and appropriation elements, which are based on the policy decision, which would be for the House of Keys alone. The appropriate mechanism would be for the second, purely financial part of the question to be voted on by the House of Keys separately from the Council.

80. We have agreed in principle that the new process for a financial vote should be to have the policy debate and vote as a double motion: part a) of the motion being general policy including finance, and part b) being a Keys-only vote, with the Question put on the second part without debate purely on granting permission for the tax or appropriation based on

18 House of Keys Standing Order 3.18(5) which provides for an exception to this rule in the case of a ballot is inconsistent with the statute and is ineffective – we refer this point to the House of Keys Standing Orders Committee.

the authority of the previous part of the resolution. (If Tynwald decides that the second motion should be debateable we have agreed that Members of Legislative Council should be able to speak in that debate).

81. We are strongly of the opinion that whatever system of protecting the new privilege of the House of Keys to hold the purse-strings, there should be a clear way of identifying what is exclusively for the House of Keys and what is for joint voting. As guardian of the Order Paper, the President should be the authority who identifies Keys-only motions and who will ensure that the motions contain no policy elements. As far as appropriation is concerned, there will be an identifiable resolution of Tynwald on which the motion for the authority to spend the money would be based.

82. The principal financial instrument is the Budget, followed by appropriation motions. But it is necessary to identify more clearly what is exclusively taxation and appropriation and what includes a policy element.

83. There should be statutory provisions authorizing the levying of tax, which would be the basis for identifying what constitutes a “tax”. That list should be in primary legislation and would be able to be added to as required. So, for example, tax under the Income Tax Act 1970 would clearly be included. Money levied as water rates might not be (although there was some disagreement within the Committee on this point). Either way, the decision would be settled by primary legislation being agreed under which particular levies would be specifically included. Anything not so included would not come within the ambit of “tax”.

84. In order to proceed with amending the law and Standing Orders it is necessary to identify what Tynwald wants to be done. We therefore make the following recommendation.

85. There is a need again to raise the matter that there will be an increase in the powers of the Council of Ministers, being predominantly Members of the House of Keys. At present the Legislative Council can only delay any motion (including financial motions) by one sitting. Under the arrangements outlined above, up to ten of the thirteen votes required would be guaranteed if all Ministers are MHKs. The implications of Departmental membership, and the constitutional balance between parliament and Government need to be considered in the context of these changes.

Recommendation 11 (votes on taxation and appropriation)

Each appropriation and taxation measure should be based on an identifiable policy decision taken by Tynwald and put before the House of Keys, alone in Tynwald, normally immediately after the policy resolution has been taken; taxation should be for the House of Keys to give authority for on the basis of a list of statutory provisions authorizing the raising of money.

Recommendation 12 (President to be arbiter for Keys-only votes)

The President should identify which motions are for the Keys only.

Recommendation 13 (Standing Order for Keys-only votes)

We recommend that the Tynwald Standing Orders Committee should report on a draft Bill, with a view to its being introduced in the House of Keys, to provide for the power to amend arrangements for authorizing taxation and appropriation measures, basing authority for the Keys to agree such measures on specific resolutions of Tynwald in the light of the foregoing two resolutions.19 VI. THE BISHOP’S ROLE

86. In the debate establishing this Committee in June 2017, Tynwald resolved decisively (20/4 and 7/0) that the Bishop should remain a Member of the Legislative Council. The Committee therefore takes as a given that Tynwald believes that the Bishop should remain a Member of the Legislative Council. We are asked to consider whether the Bishop should be included in the quorum of the Legislative Council and whether he should be allowed to abstain.

87. In the same debate, a proposal that the Bishop be deprived of his vote was rejected on the basis of a disagreement between the Branches (15/9 and 2/5). Although this proposal was carried in the Keys and had 17 votes overall, the mover of the proposal (Mr Speaker) did not call for a combined vote. In July 2017 a motion by Mr Hooper that the Bishop should not retain his vote was lost in both Branches (10/13 and 2/6). This indicates that no assumption can be made that there are 17 Members in favour of removing the Bishop’s vote. Informal indications also support the view that the opinion of Tynwald Members on this matter is still developing. The Committee has proceeded on the basis that Tynwald expects the Bishop’s vote to remain at present.

Quorum – general

88. If the Bishop’s vote did not count towards the quorum, the result would be that in normal circumstances five of the eight elected MLCs would be needed in order for business to continue. The change would be unlikely to lead to many practical difficulties at times when all eight elected MLC posts were filled. It could, however, have the effect of reducing the incentive for the Bishop to attend Tynwald sittings and to exercise his vote.

19 House of Keys Standing Order 4.2(1)(f) allows a Bill to be introduced in the House of Keys which has been attached to a Report of a Committee of Tynwald and approved by Tynwald.

89. The Bishop is bound by Standing Orders of both Tynwald Court and the Legislative Council, which provide that he should attend every sitting unless leave of absence is given. However, it is rare for leave to be withheld. So long as the Bishop counts towards the quorum, any episcopal absence therefore places a greater responsibility to the other voting Members of the Legislative Council to attend and make up the quorum. The main reason why the former Bishop wished to be discounted from the quorum calculation was to make it easier for him to miss sittings. He said in his oral evidence to Lord Lisvane:

I wonder whether the Bishop should be counted among the Members that count towards a quorum in Legislative Council, then in Tynwald, because one of the privileges of being a Bishop here is that one is a diocesan and as a diocesan Bishop I am expected to chair a number of committees, be a member of other committees and do various other things – maybe at the bidding of the Archbishops or whatever – in the UK or internationally. Given the difficulties of travel sometimes on and off the Island and the fact that I do not have a staff to deal with stuff like any other diocesan, having to rush back, sometimes very early in the morning, to get back to Tynwald, and dash off late at night after a session, it would be quite useful if I was not a member of the quorum, I think.20

90. It should be noted that the Attorney General’s presence does not count towards the quorum of Legislative Council or Tynwald, however he is still under an obligation to attend. A change in the rule relating to the quorum may indicate that the Bishop was not always expected to attend sittings, unlike all other Members. It would make it easier for a Bishop possessed of a vote to miss sittings of Tynwald Court and the Legislative Council in pursuit of other duties.

Quorum during Legislative Council elections – Tynwald Court

91. In Tynwald Court the quorum of the Legislative Council is a majority of the serving Members of the Branch who are entitled to vote. Normally the number of serving Members is nine and the quorum is five, meaning that a sitting can continue with four voting Members absent. A fifth Member would need to be absent before a sitting would have to be halted as inquorate.

92. Twice in every five years, four elected MLCs go out of office at the end of February. The number of serving Members then falls to five until the House of Keys has filled the vacancies. The effect of the quorum rule in Tynwald Court is that in a Legislative Council election year, in the event that the March sitting of Tynwald falls before the Keys has filled the vacancies, the quorum falls to three. Thus it is possible for two of the five MLCs to be absent without the sitting having to be halted.

20 Lisvane Report, Annex 4, line 1631 (page 37)

93. If it were decided that the Bishop’s vote would not count towards the quorum in Tynwald Court, then at the point where there are four vacancies in the Legislative Council, the quorum would still be three. However, for a sitting to continue it would be necessary for three of the four elected MLCs to be present. To put it another way, only one elected MLC could step out of the Chamber at any one time. If a second elected MLC were to be absent, however briefly, the sitting would have to be halted.

94. If the Bishop is not part of the quorum of Tynwald Court the question of how to avoid the difficulty of holding a March sitting of Tynwald in a year where there is an election for Members of Legislative Council needs to be answered.

Quorum during Legislative Council elections – Legislative Council (sitting separately)

95. In the Legislative Council sitting separately, the quorum is normally five, meaning a sitting can continue with four voting Members absent. A fifth Member would need to be absent before a sitting would have to be halted as inquorate.

96. The quorum can be reduced by the President to four in exceptional circumstances. This rule was put in place in 2008 to cover the circumstances which arose in that year where a Legislative Council election year coincided with a vacancy in the office of Bishop, meaning that for some weeks there were only four serving Members entitled to vote. It is not intended for use in a normal election year where there are four vacancies, unless there was a need for emergency legislation.

If it were decided that the Bishop’s vote should not count towards the quorum in the Legislative Council sitting separately, the effect would be that, in an election year during the time when there are four vacancies, the Council could not sit until the Keys filled at least one of those vacancies.

Abstention

97. At present in both Tynwald Court and the Legislative Council the Bishop must vote for or against every motion. In this respect the Bishop is treated the same as every other voting Member of Tynwald except Mr Speaker, who may abstain in the House of Keys but not in Tynwald Court.

98. The former Bishop said to Lord Lisvane:

…the Bishop sometimes is required to vote on political matters of which he has no opinion, no axe to grind whatsoever. Now, we have been through this: rarely does his vote count. When there is a procedural matter or a political matter, it seems to me it is undesirable that the only way out of voting is for the Bishop to excuse himself from the Chamber. Because electronic voting means yes or no; you simply cannot escape the vote. I think there are times, particularly when the Bishop has been caught having voted in

such a way that it divides the Houses, let us say, when it would have been much better if I had been able simply to escape.21

99. The question arises whether a Bishop possessed of a vote should be allowed an “escape” route which is not available to other voting Members? We note that if the Bishop were allowed to abstain, there would be an even number of voting Members in Legislative Council, thus making it more likely that a vote would end in a tie in Legislative Council, whether sitting alone or in Tynwald.

Conclusion

100. We are about to welcome a new Bishop to the Island. Tynwald has agreed the principle that the Bishop should remain as a Member of the Legislative Council. We have decided that we should postpone further consideration of the points relating to abstention and making up the quorum until the new Bishop is in post and has had a chance to become familiar with the workings of Tynwald and the demands of being a diocesan Bishop; we will then be able to consult him properly.

101. We propose therefore to deal with the questions of whether the Bishop should count towards the quorum or be allowed to abstain once the new Bishop has settled in. It is premature to settle this now. There is no urgency – unlike with elected Members of Legislative Council, where Tynwald needs to agree what the role is before the next elections to the Council take place. VII. CONCLUSION

102. In assessing the merits and demerits of Tynwald we need to look off-island to comparator models in order to find a realistic yardstick against which to judge performance. In 2010 the Executive Committee of the Isle of Man Branch of the Commonwealth Parliamentary Association appointed a panel to undertake an assessment of Tynwald against a set of Benchmarks for Democratic Legislatures originally developed by a study group of Commonwealth Parliamentary Association Parliamentarians and circulated by the Secretary-General of the Commonwealth Parliamentary Association. The panel reported in March 2011.22

103. When considering the matters in this Report, we bore in mind both the Benchmarks for Democratic Legislatures which the Commonwealth Parliamentary Association had developed and the remarks of the Isle of Man panel which reported on them to the branch Executive Committee on the Isle of Man.

21 Lisvane Report, Annex 4, line 1640 (page 37) 22 Printed in this Report as Annex III

104. The Isle of Man panel noted that:

“The virtual absence of party politics means that there is no governing party and no in- built majority in favour of the Executive and, therefore, little risk of the parliamentary process and parliamentary independence being compromised by the Executive.”23

We caution against any change which will disrupt the carefully balanced division in the Legislature between non-Government Members and Government Members.

105. The Benchmarks for Democratic Legislatures recommended the following:

The Legislature shall provide proper remuneration and reimbursement of parliamentary expenses to legislators for their service, and all forms of compensation shall be allocated on a non-partisan basis.24

We note this Benchmark in relation to our work on a pay review for Legislative Council. It is a vital component of a democratic legislature that its Members should be adequately paid.

106. The Benchmarks for Democratic Legislatures also recommended that: “Plenary votes in the Legislature shall be public”.25 The panel reported that, “Only ballots for the election of Presiding Officers, Members of the Legislative Council and committee members are secret.”26 This has now been improved so that votes for Members of Legislative Council are now public.

107. We also note the comments by Lord Lisvane about the strengths of the current system:

Judged by international parliamentary standards, the Branches of Tynwald make up a parliament that is generally in good shape. Its strengths include:

• the advantages of bicameralism, which allow a complementary rather than competing approach on the part of the upper and lower Chambers, supporting different specialisations and ways of working;

• effective ways of resolving differences between the Chambers, while ensuring a default setting that the elected Chamber will prevail;

• robust and comprehensive Standing Orders, providing a clear and certain framework for proceedings;

23 Annex III, paragraph 13 (page 4) 24 Annex III, 1.5.1 (page 7) 25 Annex III, 2.6.1 (page 9) 26 Annex III, 2.6.1 (page 9)

• extensive opportunities to call the Government to account, combined with considerable freedom of individual Members to raise matters and to access parliamentary time;

• the lack of party structures and the number of independent Members making debate more effective;

• the existence of generally accepted parliamentary privilege, protecting free speech and the interests of witnesses;

• a jurisdiction with a very strong attachment to the rule of law and a very strong institutional and cultural respect for rules;

• high quality legislative drafting, to which Private Members also have access;

• good legislative scrutiny, particularly in the Legislative Council;

 very competent and effective chairing of plenary sittings;

• orderly debates, allowing sometimes fierce disagreement within a courteous framework;

• thoroughly professional, capable and impartial staff, well regarded by equivalents in other jurisdictions;

• training programmes for staff in other small jurisdictions, and the supply of a Hansard service to them;

• good quality education and outreach programmes, including a Youth Parliament;

• a high degree of digital enablement, allowing electronic delivery of working papers and other documents;

• a helpful and comprehensive website, including audio streaming and “listen again” features;

• profitable and valued contacts with other jurisdictions, both bilaterally and through the Commonwealth Parliamentary Association and the attraction of visitors from other parliaments world-wide.27

108. The Lisvane Report has made some suggestions for change. They are set out as Annex I. We have noted whether the proposed change has been acted on or not (not all of Lord Lisvane’s recommendations have been approved by Tynwald). We propose some important alterations to the functioning of Tynwald, but we wish to acknowledge that the

27 Lisvane Report, Chapter 3, paragraph 22

debate on the future powers of Legislative Council should now switch from an emphasis on what Legislative Council should not do to one of what they should do.

109. We have recommended some important changes in the working methods of Tynwald and Government. However, the most important change will be to the commitment of Tynwald to achieve greater diversity in Tynwald and especially of the Legislative Council. This is a matter of social justice as well as one of the reputation of Tynwald on the Island and elsewhere.

110. Lord Lisvane was strongly in favour of the current fundamental structure of Tynwald, with two Branches that meet in Tynwald jointly, as well as the current separate system of voting by Branch in Tynwald. His recommendations in relation to elections to Legislative Council, the provision of a job description for Legislative Council Members, encouragement of diversity, the role of the Legislative Council, the Bishop’s position, the Programme for Government, Departmental membership, a Code of Conduct, and training and development have been debated and either (a) rejected by Tynwald, (b) made the subject of a recommendation in this Report or (c) already acted on (if not always precisely as he envisaged).

111. The remaining matters in Lord Lisvane’s Report which require further work are: a final decision on the Bishop’s right to abstain and whether he forms part of the quorum; the system for scrutiny; and Legislative Council Members’ pay (although some preliminary recommendations on this last matter are in this Report). The Committee needs a decision by Tynwald on the recommendations in this Report (other than the position of the Bishop) before it can proceed with these matters further. VIII. SUMMARY OF RECOMMENDATIONS

Recommendation 1 (Government minority)

The Government must not automatically have a majority in Tynwald or the House of Keys, as a result of the number of Ministers and Departmental Members present there. This has never previously been articulated, but there has long been an understanding that the Government ‘block vote’ on any issue should be a minority in Tynwald.

Recommendation 2 (Job description, etc. for MLCs)

We recommend that the following job description for Members of Legislative Council be adopted:

Job description

• Members of Legislative Council are a fundamental part of Tynwald. They also play an active role in Government of the Island; they may be called on to take roles in Government or in Tynwald.

• Members of Legislative Council take part in debates and votes in Legislative Council and Tynwald, so an ability to express ideas in a public forum is necessary.

• Members of Legislative Council promote, examine and scrutinise legislation, so an ability to read legislation in detail is necessary (but tuition is provided).

• Members of Legislative Council scrutinise Government in Legislative Council, Tynwald and Committees in debate and through questions and motions.

• Members of Legislative Council provide advocacy for individual members of the public.

• Members of Legislative Council exercise a consultative role in the course of which they improve lines of communication between Departments.

• Members of Legislative Council take part in the roles of Government and Tynwald by assisting with maintaining links with interest groups on and off-Island.

Recommendation 3 (civil servants as candidates)

The Tynwald Standing Orders Committee should examine and report on proposed amendments to the Isle of Man Constitution Acts to:

b) consolidate the 1919, 1961, 1971 and 2006 Constitution Acts;

c) propose to Tynwald any other amendments to the law on candidates and any other amendments to the Constitution Acts that may appear necessary.

Recommendation 4 (President to promote diversity of candidates)

The President of Tynwald should be tasked with encouraging a wide variety of candidates and to improve the accessibility of membership of Legislative Council.

Recommendation 5 (election of Members of Legislative Council)

Recommendation 6 (candidates for election as MLCs not to vote)

Recommendation 7 (pay review)

That in any examination of the pay and enhancements of Legislative Council Members the following principles should be observed:

• The salary and benefits must be sufficient to allow everyone to be able to serve;

• The salary and benefits must be at a level to attract a diverse collection of community members;

• An enhanced role in scrutiny should be recognized; and

 Any change to the structure for pay and allowances must not result in an increase in overall costs of Members’ remuneration.

Recommendation 8 (MLCs as Ministers)

We recommend that Tynwald adopt the following resolution:

Recommendation 9 (MLCs as members of Departments)

The Committee recommends the following alternative recommendations:

That Tynwald is of the opinion that:

(a) Council of Ministers should introduce legislation to provide that Members of Legislative Council should never serve as Departmental Members.

(In the alternative, if the above recommendation fails)

(c) The practice of using Members of Legislative Council as Departmental Members should continue, but that Members of the House of Keys and Ministers should take precedence when delegated functions are allocated to members of Departments. Members of Legislative Council should not exercise delegated functions unless in exceptional circumstances.

(In the alternative, if the above recommendation fails)

(e) The practice of using Members of Legislative Council as Departmental Members should continue unchanged.

Recommendation 10 (Election of Chief Minister)

That Tynwald refers the matter of the method of electing the Chief Minster to the Select Committee on the Functioning of Tynwald for consideration and report by February 2018.

Recommendation 11 (votes on taxation and appropriation)

Recommendation 12 (President to be arbiter for Keys-only votes)

The President should identify which motions are for the Keys-only.

Recommendation 13 (Standing Order for Keys-only votes)

We recommend that the Tynwald Standing Orders Committee should report on a draft Bill, with a view to its being introduced in the House of Keys, to provide for the power

to amend arrangements for authorizing taxation and appropriation measures, basing authority for the Keys to agree such measures on specific resolutions of Tynwald in the light of the foregoing two resolutions.

J P Watterson (Chairman)

G G Boot

D C Cretney

A J Allinson

T S Baker

September 2017

ANNEX I

Lisvane recommendations

Note: references in brackets refer to the chapter and paragraph numbers in the original report [GD No 2016/0047]

Recommended in the Report [GD No Progress Update 2016/0047] The two Chamber system is a strength and this No change required or proposed. should be retainedC4:9 along with the current, separate Branch, voting system in Tynwald.C4:11/15

Elections to Legislative Council C5:6-9

Proposes a nominations commission system to Motion that ‘House of Keys remain the electoral college which candidates could be proposed by anyone but that all candidates for election be nominated by an C5:18 independent Nominations Commission’, failed to carry.

Suggested changes to the voting procedure include:  a single round of voting with the  A recommendation regarding a single round of voting highest votes securing the available failed to carry in Tynwald in June. places  that it is an open vote  The voting procedure has already been amended to be an open vote and there is a recommendation in this report that the revised process be reviewed by the House of Keys Standing Orders Committee after the 2018 election.  that the commission would provide the  Failed to carry – see above nominations  that no sitting MHK could be  A recommendation to this effect failed to carry in nominated.C5:27 June but in July a recommendation that this Committee be able to consider it was approved – comment is made in this report. Legislative Council Member ProfileC5:22-24

Suggests that a job description and person profile Included in this report be drawn up.

Diversity C9:20/24-25

Tynwald collectively needs to address the issue of lack of diversity amongst Members.

Suggests that greater diversity could be achieved Although the nominations commission idea was not through the process of nominations to legislative supported in Tynwald a proposal aimed at achieving Council C5:25 greater diversity through the Legislative Council membership is included in this report.

Role of the Legislative CouncilC5:31-32

With no direct mandate the following restrictions

were recommended:  no vote on exclusively taxation or Recommendation approved in June appropriation measures  as now only exceptionally should MLCs Recommendation approved in June be Ministers  they should not be Departmental Recommendation that this Committee should consider Members the circumstances where it would be appropriate to appoint Members of Legislative Council to membership of a Department was approved in June  they should not vote on the Recommendation failed to carry in June but in July a appointment of the Chief Minister recommendation that this Committee be able to consider it was approved. The Bishop’s PositionC5:43-46

Supported the view that the Bishop should In June Tynwald agreed that the Bishop should remain an remain a Member of the Legislative Council and MLC and that he should retain his vote. They agreed to for consideration the questions of whether the consider whether the Bishop should be included in the Bishop may be allowed to abstain and that his quorum of the Legislative Council and whether he should vote may be excluded from the quorum. be allowed to abstain.

Programme for GovernmentC6:8-12

Recommends that each new Administration A Programme for Government was published in parts publish a Programme for Government including between January and April 2017. policy objectives, milestones (or at least Recommendations regarding the timing of the indications of phasing) and broad intended Programme for Government, that the views of the public budget allocations with information about the should be sought, and that there should be an annual intended legislation (as required to support the review, were carried in June. policy objectives).

Departmental MembershipC6:29-33

Suggests that high number of Members of In June Members approved a recommendation that Tynwald having roles in Government Department Members should not be appointed unless Departments is neither desirable nor sustainable. substantial responsibilities were assumed but rejected a He states that Ministers should require no more motion that there should be no more than one Member than one political Member as they should per Department. empower and support officers to a much greater extent. His opinion is that true independence in scrutiny cannot then be achieved and that this is a serious reputational risk. ScrutinyC7:8-22

The proposals re the composition of Committees In June Tynwald resolved to retain the PAC and three assume an increased number of Members policy review committees as the main bodies undertaking available exclusively for scrutiny based on a scrutiny. reduction in the number of Departmental Members.

It was noted that there was a risk that scrutineers with no Government involvement may become oppositional but that this could be mitigated by the following:  the Programme for Government process Recommendation carried in June should be a focus for the Policy Review Committees, alongside assessment of other policies, which should not only be “implemented policies”.  the Terms of Reference of the reformed A recommendation regarding terms of Reference, also Policy Review Committees should set that the consideration of Estimates should move from the down their key tasks which might PAC to the policy review committees was carried in June. include: considering Estimates (a task that I suggest below should be removed from the Public Accounts Committee who should have a retrospective focus); reporting on the most important Statutory Documents to assist consideration in Tynwald; and conducting scrutiny of the draft Bills;  a collaborative approach will be No recommendation made encouraged if each Committee develops a relationship with the relevant Committee of the Council of Ministers.

Further recommendations were:  Committees should agree and publish No recommendation made their programmes of work. This should make their operations more systematic, and improve engagement with the public.  The use of external advisors to be Recommendation that consideration be given to the use encouraged of external advice and expertise carried in June  Training should include scrutiny best Recommendation carried in June practice and the workings of Government  That Committee Chair roles should be A recommendation to elect Committee Chairs elected immediately after the Chief immediately after the Chief Minister failed to carry in Minister June

An Auditor General is required and an Recommendation approved in June Ombudsman is highly desirable.

With regards to remuneration it is proposed, The recommendations regarding remuneration were again in the context of fewer Departmental made in June; paying Committee Chairs as Ministers failed Members, that Chairmen are paid at the same to carry; that Committee Members should receive the level as Ministers and Committee Members at same as Department members was approved. the same level as Departmental Members

LegislationC8:9-9-13/16/23

New draft Bill process with automatic referral to Recommendations with respect to aspects of the the relevant major committee, who would proposed draft Bill process failed to carry in June but in consult publically and, when necessary, with July, Tynwald agreed that this Committee may consider experts and then report within a set time period. the process, public consultation and expert advice.

That the procedure regarding amending the long Recommendations with respect to the changes to the title be altered process re the long title failed to carry in June but in July,  Any amendment intended to extend the Tynwald agreed that this Committee may consider them. scope of a Bill, is not by amendments to the Long Title, but by an Instruction moved immediately after Second Reading; and  Amendments to the Long Title should be taken at the end of the Clauses stage

Further, when leave is given to introduce a Bill is This proposal was approved in June. ready for introduction, the topic is approved with the Speaker able to certify that the Long Title accurately reflects the purposes for which the House has given its permission. Code of Conduct C9:5-13 In June 2017 Tynwald considered these points:

Recommends the introduction of a free-standing Tynwald agreed a Code of Conduct, which is now in Code of Conduct, to be signed by all Members Standing Orders.

Further:  that there should be a minority of lay  This proposal was not agreed; there will be no Members of the Members’ Standards outside members of the Standards Committee. and Interests Committee, to offset the negative perceptions of Members passing judgement on Members and to ensure robust judgement.  That members of the public should be  Complaints will continue to go through the able to make a complaint Member filter, but could also be referred to the Tynwald Standards and Members’ Interests Committee from members of the public through the Tynwald Commissioner for Administration.  That the available sanction should be  That there should be no schedule of penalties, revisited but Tynwald will choose the appropriate sanction. All cases of suspension should involve loss of payment of expenses, including any additional sums payable to certain office holders. Members’ Remuneration C9:29

An independent review is required In June Tynwald agreed to review the pay and enhancements of MLC’s in light of any change in responsibilities.

Training & Development C9:34-35

That more training and development In June Tynwald agreed that there should be continuous opportunities for members was desirable. professional development for Members

ANNEX II

Members of Tynwald - Positions Held

Role MHK MLC

Presiding Officer 1 1

Minister 9 0

Departmental Memberships 19 7

Statutory Board, Public Services Commission & Planning Committee 7 2 Positions

Government - Other Memberships: 8 5

Armed Forces, Children’s and Equality Champions, Arts Council, Communications Commission, Culture Vannin, MNH, PSPA, TACD and War Pensions

Parliamentary Committee Memberships: 51 27

Standing, Procedural, Policy Review and Select Committees

External Parliamentary Roles: 4 3

British Irish Parliamentary Association, Conference of Speakers and Presiding Officers of the Commonwealth, University of Lancaster, Commonwealth Women Parliamentarians

Total number of roles currently undertaken 99 45

The information provided is a snapshot of known roles in September 2017

ANNEX III

REPORT OF THE PANEL APPOINTED TO ASSESS THE ISLE OF MAN PARLIAMENTARY SYSTEM AGAINST THE COMMONWEALTH PARLIAMENTARY ASSOCIATION BENCHMARKS FOR DEMOCRATIC LEGISLATURES

COMMONWEALTH PARLIAMENTARY ASSOCIATION BENCHMARKS FOR DEMOCRATIC LEGISLATURES

PANEL APPOINTED TO ASSESS THE ISLE OF MAN PARLIAMENTARY SYSTEM

REPORT

47 48 COMMONWEALTH PARLIAMENTARY ASSOCIATION BENCHMARKS FOR DEMOCRATIC LEGISLATURES PANEL APPOINTED TO ASSESS THE ISLE OF MAN PARLIAMENTARY SYSTEM

REPORT

The Executive Committe of the Isle of Man Branch of the Commonwealth Parliamentary Association appointed a panel to undertake an assessment of the Isle of Man Parliament against a set of Benchmarks for Democratic Legislatures originally developed by a study group of CPA Parliamentarians and circulated by the Secretary-General of the CPA.

It was felt by the panel that the benchmarks had been drafted assuming a bicameral or unicameral parliamentary system and so an introduction, setting out the tricameral system in operation, has been prepared in order to highlight some of the points of difference. This is followed by the benchmarks against which the panel judged that the Isle of Man parliamentary system had C- Complied, P- Partially Complied, N- Not Complied or N/A – Not applicable. Explanations of the assessment have been given where it was thought to be of assistance.

This reports sets out the findings of the panel.

Committee Membership1

The Hon Steve Rodan SHK (Chairman)

The Hon Noel Q Cringle OBE MLC

Hon Tony Brown MHK, Chief Minister

Prof Gerald Watts (Director of the Isle of Man International Business School)

Mr Fred Kissack OBE (former Chief Secretary)

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

1 Mr Peter Karran MHK attended one meeting before resigning from the committee in January 2011. A replacement was not sought.

50 Table of Contents

INTRODUCTION...... 1

TYNWALD – A TRICAMERAL LEGISLATURE 1

The House of Keys ...... 2

Legislative Council ...... 2

Tynwald Court ...... 2

INDEPENDENT MEMBERS AND POLITICAL PARTIES 3

EXECUTIVE GOVERNMENT 4

PARLIAMENTARY SCRUTINY OF THE EXECUTIVE 4

PROCEDURAL MATTERS 4

BENCHMARKS FOR DEMOCRATIC LEGISLATURE ISLE OF MAN SELF ASSESSMENT ...... 6

I. GENERAL 6

II. ORGANIZATION OF THE LEGISLATURE 8

III. FUNCTIONS OF THE LEGISLATURE 13

IV. VALUES OF THE LEGISLATURE 16

To: Mrs Clare Christian MLC, Chairman of the Isle of Man Branch of the Commonwealth Parliamentary Association and the Executive Committee.

COMMONWEALTH PARLIAMENTARY ASSOCIATION BENCHMARKS FOR DEMOCRATIC LEGISLATURES PANEL APPOINTED TO ASSESS THE ISLE OF MAN PARLIAMENTARY SYSTEM

REPORT

INTRODUCTION

1. The CPA Recommended Benchmarks for Democratic Legislatures have been drafted assuming, as a model, a bicameral or unicameral parliamentary system with parliamentarians generally being members of political parties and the Government being formed from elected members of the majority party or from a coalition of parties. The Isle of Man political system, which has Norse origins going back over 1000 years, does not conform comfortably to this model and some explanation of the Island’s system is required as an introduction to this self-assessment.

Tynwald – a Tricameral Legislature

2. Tynwald consists of three chambers, each with its own functions and responsibilities – Tynwald Court and its two legislative branches, the House of Keys and the Legislative Council.

53 The House of Keys

3. A directly and popularly elected Chamber. It consists of 24 members elected from 15 constituencies which variously return one, two or three members. Members serve for a five year term and the House elects its own Speaker.

Legislative Council

4. Comprises the President of Tynwald as Presiding Officer, the Bishop and the Attorney General (both ex officio, the Attorney General has no vote) and eight members elected by secret ballot by the House of Keys. These eight serve for five year terms and retire in rotation in two groups of four.

Tynwald Court

5. Comprises the House of Keys and Legislative Council sitting together, but normally voting separately. The President of Tynwald is elected for the five year term of the succeeding House of Keys by the outgoing Tynwald Court. The President of Tynwald has a casting vote only, which must be cast in support of the majority vote of the House of Keys.

6. The House of Keys and Legislative Council meet weekly during the legislative session (October to June) and their principal purpose is to consider primary legislation. Such legislation requires the approval of both Chambers and must, ultimately, be signed by a majority in Tynwald Court before proceeding for the Royal Assent.

7. In the House of Keys, Bills are given a formal First Reading without debate, a Second Reading which is debated and voted on where the Bill is discussed in principle, a Clauses Stage where the Bill may be amended and where each clause is examined in detail, (there is no formal committee stage such as is seen in larger legislatures) and a Third Reading Stage where the Bill is given a short final debate and then, if it receives at least thirteen votes, the Bill is sent to the Legislative Council. It is possible that a Committee on a Bill may be appointed to take evidence in relation to one or more clauses in the Bill, or indeed in relation to the Bill as a whole. Such a Committee would not amend the Bill but would report back with recommendations. Broadly similar processes are followed in the Legislative Council, except that the First Reading stage is debated and voted on. (It is possible, though rare, for a Bill to be introduced into the

54 Legislative Council first and then, if approved, go the House of Keys for consideration).

8. Tynwald Court meets monthly during the legislative session and considers secondary legislation, budgets, money votes and general policy. Normally, matters voted on in Tynwald require the approval of a majority of both the House of Keys and Legislative Council voting separately.

Independent Members and Political Parties

9. The Isle of Man has no great tradition of political parties and whilst a small number of members will carry a party political label, no party has ever secured anything like a working majority in any Chamber. The great majority of members are independents and in practice each vote is a free vote and the Government must secure approval to its measures by persuasion on a case by case basis. There are no formal arrangements for dealing with partisan groups or parties within Tynwald.

10. The Government does not control the Order Paper for any of the Chambers. All Members are entitled to put down motions for debate, or amendments to Bills, at any time. They may also seek their colleagues’ approval to introduce a Bill in the House of Keys or Legislative Council. There are no formal time limits on speaking and Members are entitled to expect that any matters which they put down for debate will be taken at the appropriate time and given as much time as the Members collectively feel is necessary. Any business not dealt with by the time that any Chamber rises is deferred until the following sitting.

11. Individual Members have considerable scope and freedom in performing their parliamentary duties and, collectively, they exercise a largely unfettered authority. In particular, the parliamentary budget, the remuneration of Members and the level of their facilities and support are determined by the legislators themselves.

55 Executive Government

12. There is a Chief Minister, who is elected by Tynwald. He or she nominates up to nine ministers who receive their appointments from the Lieutenant Governor, as representative on the Island of Her Majesty the Queen, Head of State. The Chief Minister and the Ministers form the Council of Ministers and they are responsible for the running of the various Government Departments. The Council of Ministers normally vote together on the basis of collective responsibility on Government business but they are a minority in all of the Chambers. Other Members of Tynwald may be appointed to assist the Ministers within the various Departments or to serve on the Statutory Boards which supplement the Departments in providing public services and almost all Members of Tynwald will contribute to the work of Government through the Departments and Statutory Boards.

13. The virtual absence of party politics means that there is no governing party and no in-built majority in favour of the Executive and, therefore, little risk of the parliamentary process and parliamentary independence being compromised by the Executive.

Parliamentary Scrutiny of The Executive

14. Other than the Public Accounts Committee, there are standing Committees of Tynwald providing a routine oversight of the work of the Executive. There is, additionally, the facility for Members individually to engage in scrutiny and Select Committees are appointed to review aspects of the Executive’s performance as and when Tynwald considers that to be appropriate.

Procedural Matters

15. There is statutory legal protection for witnesses from civil or criminal suit arising from anything that they may say or write when giving evidence to Tynwald, its branches or any committees of Tynwald or its branches.

56 16. In February each year the annual Budget is presented to Tynwald and debate and vote take place on the day the Budget is moved. Privately, Members of Tynwald are given an advance briefing with sight of the Budget papers approximately one week before the Budget sitting.

17. The voting rules in Tynwald and the branches mean that the House of Keys can override the Legislative Council, both in relation to legislation and financial or policy motions. Legislative Council can delay a proposal but cannot veto one finally. The absence of rules governing time for debate and the fact that almost all Members sit as independent Members mean that parliamentary control over the Executive on the Isle of Man is considerable.

58 BENCHMARKS FOR DEMOCRATIC LEGISLATURE ISLE OF MAN SELF ASSESSMENT

I. GENERAL

ASSESSED* FINAL SUBMISSION NOTES AND EVIDENCE

1. GENERAL

1.1 Elections

1.1.1 Members of the popularly elected or only P Constituencies elect variously one, two or three House shall be elected by direct universal and Members and voters have as many votes as there are equal suffrage in a free and secret ballot. Members elected for their constituency. There is not therefore equal suffrage.

1.1.2 Legislative elections shall meet international C standards for genuine and transparent elections.

1.1.3 Term lengths for Members of the popular C House shall reflect the need for accountability through regular and periodic legislative elections.

1.2 Candidate Eligibility

1.2.1 Restrictions on candidate eligibility shall not C be based on religion, gender, ethnicity, race or disability.

1.2.2 Special measures to encourage the political N/A In the absence of a party system and there being no participation of marginalized groups shall be requirement for a deposit, political participation is narrowly drawn to accomplish precisely very easy. Therefore there is no requirement for defined, and time-limited, objectives. special measures.

1.3 Incompatibility of Office

1.3.1 No elected Member shall be required to take C a religious oath against his or her conscience in order to take his or her seat in the Legislature.

1.3.2 In a bicameral Legislature, a legislator may not C The legislature is tricameral; no Member serves in be a Member of both Houses. both Branches but all serve in one of the Branches and Tynwald.

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

59 ASSESSED* FINAL SUBMISSION NOTES AND EVIDENCE

1.3.3 A legislator may not simultaneously serve in C The only query in relation to this benchmark is the the judicial branch or as a civil servant of the position of the Attorney General. He is a member of executive branch. the Legislative Council and is in part a servant of the Executive in that he takes instructions from the Executive branch in the preparation and drafting of legislation. However he is not a civil servant and in Legislative Council and Tynwald he has no vote and may thus be seen as an advisor rather than a legislator.

1.4 Immunity

1.4.1 Legislators shall have immunity for anything C said in the course of the proceedings of Legislature.

1.4.2 Parliamentary immunity shall not extend C beyond the term of office; but a former legislator shall continue to enjoy protection for his or her term of office.

1.4.3 The executive branch shall have no right or C Parliamentary privilege is set in statute. power to lift the immunity of a legislator.

1.4.4 Legislators must be able to carry out their C legislative and constitutional functions in accordance with the constitution, free from interference.

1.5 Remuneration and Benefits

1.5.1 The Legislature shall provide proper C ‘Proper remuneration’ involves a subjective judgment. remuneration and reimbursement of However the amounts are determined by the parliamentary expenses to legislators for their unfettered democratic decisions of the legislators service, and all forms of compensation shall themselves and they are allocated on a non partisan be allocated on a non-partisan basis. basis. This arrangement cannot be faulted in terms of the benchmark.

1.6 Resignation

1.6.1 Legislators shall have the right to resign their C seats.

1.7 Infrastructure

1.7.1 The Legislature shall have adequate physical C This is agreed and determined by the members infrastructure to enable Members and staff themselves. to fulfil their responsibilities.

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

60 II. ORGANIZATION OF THE LEGISLATURE

ASSESSED* FINAL SUBMISSION NOTES AND EVIDENCE

2. PROCEDURE AND SESSIONS

2.1 Rules of Procedure

2.1.1 Only the Legislature may adopt and amend C its rules of procedure.

2.2 Presiding Officers

2.2.1 The Legislature shall select or elect C presiding officers pursuant to criteria and procedures clearly defined in the rules of procedure.

2.3 Convening Sessions

2.3.1 The Legislature shall meet regularly, at C intervals sufficient to fulfill its responsibilities.

2.3.2 The Legislature shall have procedures for C calling itself into regular session.

2.3.3 The Legislature shall have procedures for C calling itself into extraordinary or special session.

2.3.4 Provisions for the executive branch to N/A There are no special provisions for the executive convene a special session of the Legislature branch to convene a special session of the Legislature shall be clearly specified.

2.4 Agenda

2.4.1 Legislators shall have the right to vote to C amend the proposed agenda for debate.

2.4.2 Legislators in the lower or only House shall C The Isle of Man has provision for this in both have the right to initiate legislation and to Branches. offer amendments to proposed legislation.

2.4.3 The Legislature shall give legislators C adequate advance notice of session meetings and the agenda for the meeting.

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

61 ASSESSED* FINAL SUBMISSION NOTES AND EVIDENCE

2.5 Debate

2.5.1 The Legislature shall establish and follow C clear procedures for structuring debate and determining the order of precedence of motions tabled by Members.

2.5.2 The Legislature shall provide adequate C opportunity for legislators to debate bills prior to a vote.

2.6 Voting

2.6.1 Plenary votes in the Legislature shall be C Only ballots for the election of Presiding Officers, public. Members of the Legislative Council and committee members are secret.

2.6.2 Members in a minority on a vote shall be C Any Member may request this. able to demand a recorded vote.

2.6.3 Only legislators may vote on issues before C the Legislature.

2.7 Records

2.7.1 The Legislature shall maintain and publish C readily accessible records of its proceedings.

3. COMMITTEES

3.1 Organization

3.1.1 The Legislature shall have the right to form C permanent and temporary committees.

3.1.2 The Legislature’s assignment of committee N/A The legislature of the Isle of Man does not operate Members on each committee shall include within a party political system. both majority and minority party Members and reflect the political composition of the Legislature.

3.1.3 The Legislature shall establish and follow a C The method for election of committee chairmen is set transparent method for selecting or electing down in Standing Orders. Other than for the Public the chairs of committees. Accounts Committee the election is not held in public but the result is made known.

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

62 ASSESSED* FINAL SUBMISSION NOTES AND EVIDENCE

3.1.4 Committee hearings shall be in public. Any C Unless the Committee shall determine otherwise oral exceptions shall be clearly defined and evidence taken by a Committee shall be taken in public provided for in the rules of procedure. and recorded.

3.1.5 Votes of committee shall be in public. Any N Committees do not vote in public. The final report exceptions shall be clearly defined and including any recommendations is only published when provided for in the rules of procedure. the committee is agreed or, if not, a memorandum of dissent is attached. The report and recommendation are then voted on by Tynwald Members in public.

3.2 Powers Noted that with the exception of 3.2.1 this section was taken to mean all committees not just those concerned with the consideration of legislation

3.2.1 There shall be a presumption that the N Legislation is examined in debate by both Branches as Legislature will refer legislation to a a whole rather than by Committees of the Branches. committee, and any exceptions must be A legislative issue may be referred to a committee but transparent, narrowly-defined, and this tends to be the exception rather than the rule. extraordinary in nature.

3.2.2 Committees shall scrutinize legislation C Committees may recommend changes but cannot referred to them and have the power to actually amend legislation that would be done in the recommend amendments or amend the Branches. legislation.

3.2.3 Committees shall have the right to consult C and/or employ experts.

3.2.4 Committees shall have the power to C Council of Ministers papers may be withheld. summon persons, papers and records, and this power shall extend to witnesses and evidence from the executive branch, including officials.

3.2.5 Only legislators appointed to the C committee, or authorized substitutes, shall have the right to vote in committee.

3.2.6 Legislation shall protect informants and C witnesses presenting relevant information to commissions of inquiry about corruption or unlawful activity.

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

63 ASSESSED* FINAL SUBMISSION NOTES AND EVIDENCE

4. POLITICAL PARTIES, PARTY GROUPS AND CROSS PARTY GROUPS

4.1 Political Parties

4.1.1 The right of freedom of association shall C exist for legislators, as for all people.

4.1.2 Any restrictions on the legality of political N/A There are no restrictions. parties shall be narrowly drawn in law and shall be consistent with the International Covenant on Civil and Political Rights.

4.2 Party Groups

4.2.1 Criteria for the formation of parliamentary N/A There is no recognised party system in the Isle of Man. party groups, and their rights and Parties exist and members of parties have been responsibilities in the Legislature, shall be returned as Members of Tynwald, but always on an clearly stated in the rules. individual basis. There are no rules either giving rights to parties protecting their interests or restricting them.

4.2.2 The Legislature shall provide adequate N/A See 4.2.1 resources and facilities for party groups pursuant to a clear and transparent formula that does not unduly advantage the majority party.2

4.3 Cross Party Groups

4.3.1 Legislators shall have the right to form C interest caucuses around issues of common concern.

5. PARLIAMENTARY STAFF

5.1 General

5.1.1 The Legislature shall have an adequate non- C Staffing levels are controlled by the legislature itself. partisan professional staff to support its operations including the operations of its committees.

5.1.2 The Legislature, rather than the executive C branch, shall control the parliamentary service and determine the terms of employment.

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

64 ASSESSED* FINAL SUBMISSION NOTES AND EVIDENCE

5.1.3 The Legislature shall draw and maintain a N/A No partisan staff are employed. clear distinction between partisan and non- partisan staff.

5.1.4 Members and staff of the Legislature shall C have access to sufficient research, library, and ICT facilities.

5.2 Recruitment

5.2.1 The Legislature shall have adequate C resources to recruit staff sufficient to fulfil its responsibilities. The rates of pay shall be broadly comparable to those in the public service.

5.2.2 The Legislature shall not discriminate in its C recruitment of staff on the basis of race, ethnicity, religion, gender, disability, or, in the case of non-partisan staff, party affiliation.

5.3 Promotion

5.3.1 Recruitment and promotion of non-partisan C staff shall be on the basis of merit and equal opportunity.

5.4 Organization and Management

5.4.1 The head of the parliamentary service shall C In the absence of political parties this question loses have a form of protected status to prevent much of its importance. The Clerk may only be undue political pressure. dismissed by a majority vote of Tynwald.

5.4.2 Legislatures should, either by legislation or C The Clerk of Tynwald operates with the Tynwald resolution, establish corporate bodies Management Committee and the Tynwald responsible for providing services and Emoluments Committee. funding entitlements for parliamentary purposes and providing for governance of the parliamentary service.

5.4.3 All staff shall be subject to a code of C The Staff of the Clerk of Tynwald’s office operate conduct. under the IOM civil service rules although there is the option to vary these if required.

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

65 III. FUNCTIONS OF THE LEGISLATURE

ASSESSED* FINAL SUBMISSION NOTES AND EVIDENCE

6. LEGISLATIVE FUNCTION

6.1 General

6.1.1 The approval of the Legislature is required for C the passage of all legislation, including budgets

6.1.2 Only the Legislature shall be empowered to C The budget of the legislature forms part of the Isle of determine and approve the budget of the Man Government budget and is subject therefore to Legislature. negotiation with the Executive branch. But the Legislature ultimately has the dominant position in determining and approving the budget of the Legislature.

6.1.3 The Legislature shall have the power to enact C resolutions or other non-binding expressions of its will.

6.1.4 In bicameral systems, only a popularly elected P The vote to remove the Council of Ministers is taken House shall have the power to bring down in Tynwald. All voting Members must vote including government. Legislative Council Members, who are indirectly elected as they are elected by the House of Keys.

6.1.5 A chamber where a majority of Members are N/A The concept of money bills does not exist in the Isle not directly or indirectly elected may not of Man. indefinitely deny or reject a money bill.

6.2 Legislative Procedure

6.2.1 In a bicameral Legislature there shall be clearly C Tynwald has a tricameral system, with clearly defined defined roles for each Chamber in the passage roles for each Chamber. of legislation.

6.2.2 The Legislature shall have the right to N/A There is no executive veto. override an executive veto.

6.3 The Public and Legislation

6.3.1 Opportunities shall be given for public input C This is achieved through: into the legislative process.  public consultation  the petitions system  public hearings at the bar in cases where people are particularly affected by initiatives

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

66 ASSESSED* FINAL SUBMISSION NOTES AND EVIDENCE

6.3.2 Information shall be provided to the public in C Order papers and question papers are produced a a timely manner regarding matters under minimum of 5 days before sittings. The Early consideration by the Legislature. Publications of the Hansard are produced within hours.

7. OVERSIGHT FUNCTION

7.1 General

7.1.1 The Legislature shall have mechanisms to C obtain information from the executive branch sufficient to exercise its oversight function in a meaningful way.

7.1.2 The oversight authority of the Legislature shall N/A As a Crown Dependency responsibility for military include meaningful oversight of the military security and intelligence services lies with the United security and intelligence services. Kingdom.

7.1.3 The oversight authority of the Legislature shall C include meaningful oversight of state owned enterprises.

7.2 Financial and Budget Oversight

7.2.1 The Legislature shall have a reasonable period P Members receive national budget information of time in which to review the proposed approximately a week before the budget debate. This national budget. is not as far in advance as set out in the OECD Best Practices for Budget Transparency, 2001 but the Isle of Man has a small budget and the existing practice is accepted by the legislature.

7.2.2 Oversight committees shall provide C There are no formal opposition or government meaningful opportunities for minority or parties. Each Member is elected as an independent. opposition parties to engage in effective The chair of the Public Accounts Committee is not a oversight of government expenditures. Minister. Typically, the Public Accounts Committee will be chaired by a Member of the opposition There is a committee system of Standing Committees, party. including the Public Accounts Committee and (ad hoc) Select Committees elected by Tynwald.

7.2.3 Oversight committees shall have access to C records of executive branch accounts and related documentation sufficient to be able to meaningfully review the accuracy of executive branch reporting on its revenues and expenditures.

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

67 ASSESSED* FINAL SUBMISSION NOTES AND EVIDENCE

7.2.4 There shall be an independent, non-partisan P The Tynwald Auditor General Act will, when supreme or national audit office whose implemented, ensure full compliance. reports are tabled in the Legislature in a timely manner.

7.2.5 The supreme or national audit office shall be C provided with adequate resources and legal authority to conduct audits in a timely manner.

7.3 No Confidence and Impeachment

7.3.1 The Legislature shall have mechanisms to C Motions of no confidence and censure motions are impeach or censure officials of the executive possible. branch, or express no-confidence in the government.

7.3.2 If the Legislature expresses no confidence in C the government the government is obliged to offer its resignation. If the head of state agrees that no other alternative government can be formed, a general election should be held.

8. REPRESENTATIONAL FUNCTION

8.1 Constituent Relations

8.1.1 The Legislature shall provide all legislators C with adequate and appropriate resources to enable the legislators to fulfil their constituency responsibilities.

8.2 Parliamentary Networking and Diplomacy

8.2.1 The Legislature shall have the right to receive N/A development assistance to strengthen the institution of parliament.

8.2.2 Members and staff of Parliament shall have the C right to receive technical and advisory assistance, as well as to network and exchange experience with individuals from other Legislatures.

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

68 IV. VALUES OF THE LEGISLATURE

ASSESSED FINAL SUBMISSION NOTES AND EVIDENCE

9. ACCESSIBILITY

9.1 Citizens and the Press

9.1.1 The Legislature shall be accessible and open C to citizens and the media, subject only to demonstrable public safety and work requirements.

9.1.2 The Legislature should ensure that the media C are given appropriate access to the proceedings of the Legislature without compromising the proper functioning of the Legislature and its rules of procedure.

9.1.3 The Legislature shall have a non-partisan C media relations facility.

9.1.4 The Legislature shall promote the public’s C understanding of the work of the Legislature.

9.2 Languages

9.2.1 Where the constitution or parliamentary N/A rules provide for the use of multiple working languages, the Legislature shall make every reasonable effort to provide for simultaneous interpretation of debates and translation of records.

10 ETHICAL GOVERNANCE

10.1 Transparency and Integrity

10.1.1 Legislators should maintain high standards of C The Clerk of Tynwald Office accounts are published as accountability, transparency and responsibility part of the Isle of Man Government Accounts. in the conduct of all public and parliamentary The accountability for expenditure is the same as for matters. the rest of Isle of Man Government, the Clerk is the Accounting Officer, and Tynwald is subject to the same internal and external audit requirements as Government Departments. The details of remuneration and travel allowances for members are published on the Tynwald website

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

69 ASSESSED FINAL SUBMISSION NOTES AND EVIDENCE

10.1.2 The Legislature shall approve and enforce a C code of conduct, including rules on conflicts of interest and the acceptance of gifts.

10.1.3 Legislatures shall require legislators to fully P Members Interest Rules can be found on the Tynwald and publicly disclose their financial assets and website. business interests. http://www.tynwald.org.im/papers/standing/mir.pdf These do not require the disclosure of all financial assets.

10.1.4 There shall be mechanisms to prevent, detect, C The normal law applies to corruption. The and bring to justice legislators and staff independent judiciary upholds the rule of law which is engaged in corrupt practices. the guarantee of probity, although Tynwald and the House of Keys also have Standards Committees which examine cases of misconduct by Members.

The Hon S C Rodan SHK (Chairman)

The Hon N Q Cringle OBE MLC

Hon J A Brown MHK, Chief Minister

Prof G Watts (Director of the Isle of Man International Business School)

Mr F Kissack OBE (former Chief Secretary)

March 2011

* C = Complied, P = Partially Complied, N = Not Complied, N/A = Not Applicable

WRITTEN EVIDENCE

Members’ submissions

David Ashford MHK

73 74 Submission to the Functioning of Tynwald Committee David Ashford MHK

From: Ashford, David (MHK) [mailto:[email protected]] Sent: 21 July 2017 16:00 To: Roger Phillips Subject: RE: Functioning of Tynwald Report

Dear Roger,

Please find below my submission to the Committee:

1. That MLCs should not vote on measures which are exclusively on taxation appropriation, and that the Clerk of Tynwald formulate a definition for Standing orders – Completely agree with this recommendation. In many jurisdictions it is normal for any appointed upper house to ceade taxation and appropriation decisions to the elected lower house. The definition however must be tight to ensure that future governments do not simply try to design legislation or formulate proposals to avoid a difficult vote in the upper house.

2. That MLCs should not be Ministers, other than in exceptional circumstances – I do not believe MLCs should be Ministers under any circumstances. They are not chosen by the public of our island and I believe that should be a fundamental requisite for being a Minister. No one should be making decisions at Ministerial level or within Council of Ministers without a democratic mandate from the people. With this point the argument of “experience” is always brought to bear. Well to me it’s a false argument. If at a general election the public decided to get rid of the existing “experience” by removing 14 or more MHKs then that is the publics democratic will for change and new “experience”. That should not then be over ridden via the backdoor. It should also be recognised that new MHKs bring with them wide ranging “experience” from different walks of life and so in the event of a massive turnover of MHKs a Chief Minister has to appoint new MHKs as Ministers then so be it. That would have been the democratic will of the people at the ballot box.

3. That the Bishop should remain a Member of Legislative Council – I agree that the Bishop should remain as a member of Legislative Council representing faith groups but that the Bishop should not have a vote. I can’t see how the Committee can really consider this without also considering the voting issue at the same time. If the cost of the Bishop remaining was the retention of his vote then I would personally support in that instance the removal of the Bishop from Legislative Council, so the two are interlinked. There has been an argument advanced that if the Bishop’s vote is removed then the Archbishop of York will remove the Bishopric from the Island. Being blunt if the church wants to shoot themselves in the foot by taking that action and not only lose their vote but also their voice in our Parliament then to be blunt that is a matter for them.

75 4. That Tynwald should consider whether: The Bishop should be included in the quorum of the Legislative Council and he should be allowed to abstain – In respect to the quorum I have no real fixed views one way or the other. I relation to the abstention that doesn’t really apply as I do not believe the Bishop should have a vote at all.

5. Whether the vote be open for the election of the Members of Legislative Council – You will be unsurprised to hear since I took the stages of the Act through the House of Keys that I am in favour of the open vote that is currently in place. I believe it worked well in the round of voting we recently undertook and added transparency to the process.

6. The circumstances (if any) where it would be appropriate to appoint Members of Legislative Council to membership of a Department – I firmly believe Members of Legislative Council should sit outside of government and focused purely on scrutiny. But again as with the issue of the Bishop I don’t think this can be considered in isolation of the need to reform the scrutiny system. As I stated in Tynwald I think Lord Lisvane missed a trick in not recommending that the chairs of the four scrutiny committees should be MLC’s. That would then leave four remaining MLCs one of each would then be appointed as a member of each scrutiny committee and then the remaining places would come from members of the Keys.

7. Whether the pay and enhancements for Members of Legislative Council be reviewed in light of their amended responsibilities – I agree there should be a review but it would be hard to do at the moment until we resolve what their new responsibilities are. As stated in the point above these points can’t be considered in isolation and can only really be considered once any recommendations around scrutiny have been firmly decided. For instance in the model I lay out in point 6 above I would favour the Chairs of scrutiny committees being paid at the same level as Statutory Board Chairmen and the members the same as department members.

David Ashford MHK MHK for Douglas North Legislative Buildings Finch Road Douglas Isle of Man IM1 3PW British Isles Mobile | (07624) 427232 [email protected] | www.tynwald.org.im | www.davidashford.im

The House of Keys, a branch of Tynwald, the oldest continuous parliament in the world. The House of Keys is the elected branch of the Manx Parliament. The Isle of Man is an independent nation with its own laws, legislation and police force. It also has its own unique, very special and world renowned culture, language, history, heritage, wildlife and countryside.

Daphne Caine MHK

77 78 From: Caine, Daphne (MHK) [mailto:[email protected]] Sent: 21 July 2017 13:35 To: Phillips, Roger Cc: Martyn Perkins Subject: submission to the Select Committee on the Functioning of Tynwald

Dear Roger

I wasn’t intending to make a formal submission to the committee, feeling I made all my points in the debate. However, a constituent has sent in the email below and I wish to endorse the points made, with which I absolutely concur. I’d be grateful if you would pass the comments on to the committee.

Lesh yeearreeyn share – with best wishes

Daphne

Daphne Caine MHK for Garff Legislative Buildings Finch Road Douglas Isle of Man IM1 3PW British Isles Office Tel | (01624) 651519 Office Mobile | (07624) 463411 [email protected] | www.tynwald.org.im |

From: Sent: 18 July 2017 16:54 To: Caine, Daphne (MHK); Perkins, Martyn Subject: That the First Interim Report of the Select Committee on the Functioning of Tynwald – Remit and Work Plan

Dear Daphne & Martyn I note that the First Interim Report of the Select Committee on the Functioning of Tynwald – Remit and Work Plan was received and the recommendations be approved in Tynwald today. In the Report it was requested Members write to the Committee, about the matters on which it must th report in October, by 14 July 2017. However in the debate it would seem that the submission date has been extended to 21st July.

79 I hope you have, or will, make a submission.

As your constituent I wish to make you both aware of my opinion on these items. It is based on democratic principles, which are shrouded within our parliamentary system.

1. Whether Members of Legislative Council should be able to vote on the appointment of the Chief Minister or on a vote of confidence in either the Chief Minister or the Council of Ministers.

It has long been my view that the Chief Minister should be elected by the voting public, but I recognise that proposition is not being considered. The Members of LegCo are not elected by the public, so in my opinion it is not democratic that MLCs are awarded the privilege of voting to elect of Chief Minister.

2. Whether the Lord Bishop should retain his vote.

Similarly the Bishop is not elected at all. As I understand it he, or it could be she, is appointed on the recommendation of the UK Prime Minister. At that time the appointee is not even a resident of the Isle of Man. You will be only too aware that in being elected you had to satisfy a 5 year residency qualification. Incidentally to stand as an MLC there is only a residency qualification but without any time-frame. This anomaly needs to be rectified. The Bishop should not retain a vote

3. Whether a sitting Member of the House of Keys should be eligible to be nominated as a Member of Legislative Council.

My own votes, in the 2016 General Election, were based on the premise that the elected candidate would serve for a full 5 year term. I believe being elected as an MHK is a contract with constituents to serve as an MHK for a full parliamentary term. The existing eligibility breaks that contract. Right now 5 members of LegCo were guilty of this. Sitting MHKs ought not be eligible for nomination as an MLC.

Sincerely

Bill Henderson MLC

81 82 From: Bill Henderson [mailto:[email protected]] Sent: 17 July 2017 09:56 To: Roger Phillips Subject: Evidence Document

Dear Roger,

Please find attached my evidence document for Mr. Watterson’s select committee examining the ‘Lisvane Report’ – functions of Tynwald etc.

Could you also give the Committee site of this e mail as I will offer apologies now, as my submission is lengthy, but warranted. Importantly it has not had the benefit of a ‘full editorial’ as time will not allow for this, hence it is in more note format than we would see in a more formal document, and a little repetitive in places – for which again, I apologise, but time is of the essence!

Many thanks,

Bill

Bill Henderson, MLC, Dip.Mgt., MCIM, RMN (Ret)

Member of the Legislative Council and Tynwald – the Independent Parliament of the Isle of Man

Tynwald Members Offices The Clerk of Tynwalds Office Legislative Buildings Douglas Isle of Man IM1 3PW

01624 685642

THE LEGISLATIVE COUNCIL, A BRANCH OF TYNWALD, THE OLDEST CONTINUOUS PARLIAMENT IN THE WORLD. THE LEGISLATIVE COUNCIL IS THE INDIRECTLY ELECTED BRANCH OF THE MANX PARLIAMENT. THE ISLE OF MAN IS AN INDEPENDENT NATION WITH ITS OWN LAWS, LEGISLATION AND POLICE FORCE. IT ALSO HAS ITS OWN UNIQUE, VERY SPECIAL AND WORLD RENOWNED CULTURE, LANGUAGE, HISTORY, HERITAGE, WILDLIFE AND COUNTRYSIDE.

83 84 Functions of Tynwald – Tynwald Select Committee

Functions of Tynwald – Tynwald Select Committee – June, 2017 Evidence – submission by R.W. Henderson, MLC

Introduction – The Lisvane Review of the Functions of Tynwald includes a recommendation to retain the Legislative Council. In doing so, Lisvane, undoubtedly recognised the increased and highly desirable democratic elements a second chamber brings, critical in the view of many political authorities and analysts (referenced at conclusion) to any independent parliamentary structure: a 2nd review of legislation and policy, further scrutiny and importantly providing a counter weight to executive / government power. Lisvane comments further on the generally good shape of Tynwald.

These are two observations that I fully endorse and validate with evidence provided within this document. However, Lisvane went on to comment on the membership of government departments with regards to MLC membership, the formation of a Legco Nominations Committee and the membership of Tynwald Scrutiny Committees, which I cannot agree with. I have laid out my reasoning for this in my evidence submission to the Lisvane Enquiry (attached), and indeed more substantially for this Committee, following the publishing of the Lisvane Report and recent June, 2017 Tynwald debate and call for evidence. I have added further commentary through a second attached document – the substantive motion, as finally approved by Tynwald during that debate. This commentary is inserted under relevant paragraphs and in red for ease.

Government Department Memberships – Why do all Tynwald Members Serve on Government Departments?

Collective Responsibility

Since the formation of full, Ministerial Government in the Isle of Man (1990), a Collective Responsibility model has been adopted, based (but not exclusively, as we have our own unique differences) on a ‘Westminster Style Government.’ This model being a corner stone to the ‘Cabinet / Ministerial model’ used in the Isle of Man – The Council of Ministers. There are however, three major differences to the ‘Westminster Model’ the Manx Government conduct: all Members of Parliament (1st and 2nd houses) are given the opportunity to work within government, on government departments as government appointed departmental Members, Members can vote against government in public on issues not associated with their department and a Chief Minister Nomination must gain parliamentary approval by Tynwald.

85 Functions of Tynwald – Tynwald Select Committee

This is as opposed to the UK where only a minority of the party with the majority of the House of Commons are appointed to government, and those Members – are expected to vote with government and toe the party line. The Prime Minister being elected by their own party, without any form of public or parliamentary mandate to that position.

In the Isle of Man the successful CM nomination after 1990 to date is at liberty to choose their cabinet or ministers and invite ministers to take up a designated department (all be it with Governor ratification), this body being the Council of Ministers – the IOM Government. This method gives a clearer line of authority for the CM and cabinet, who are immediately responsible to Tynwald. All Ministers are subscribed to the protocol of collective responsibility and must support government as a body, in public, with certain exceptional circumstances.

Consensus Government

Given the small size of our jurisdiction, and consequential, proportionate formation over time of our small or micro parliament, has in turn both determined and caused a natural or ‘organic’ gravitation towards a consensus style government model which intrinsically fits our Manx circumstances. Circumstances in the main due to:

 No party politics in the Isle of Man in the true sense, Tynwald is ostensibly a none partisan legislature  Our Parliamentary assembly, sits as a tri-cameral arrangement or a ‘full parliament’ with the Legislative Council and the House of Keys functioning together as Tynwald, on a structured, regular basis discussing and examining government policy and finance motions. This model (tri-cameral) is traditional, steeped in culture and has considerably evolved over time to where we see it today, but the main pillars of our Tynwald – being kept tri-cameral  Government always sit in a minority within the House of Keys and Tynwald

Therefore, as a direct consequence of the above, Chief Minister nominations are brought to Tynwald for a full parliamentary vote of both branches, in true consensus fashion. This system departs from the consensus mode in that the CM chooses their own cabinet, not endorsed by a full parliamentary vote of both branches of Tynwald, there are advantages to this though, even for consensus as explained further on.

Thus, setting the scene for a consensus style government model, suiting the Islands circumstances. Unlike true consensus government, where all ministers are voted upon by parliament, our CM chooses his or her cabinet - a major difference and advantage, I would suggest to the Manx consensus system – where government are not under the same parliamentary pressures / potential conflict, are more separate and better able to make independent government decisions and the CM can manage his or her cabinet more effectively (see attached CoMin – collective responsibility report). So, the Island has its own

86 Functions of Tynwald – Tynwald Select Committee version. In having its own version of the consensus model, a ‘de facto counterbalance’ to a main principle of consensus government lost by way of the CM appointing their own cabinet, rather than Parliament voting on the CM’s ministerial nominations: is the fact that all Members of Parliament are offered positions within government. This has the effect of strengthening and complementing the consensus model operated – all of Tynwald involved to a lessor or greater degree in government and policy formulation – true consensus.

This Consensus Government Model has been an intrinsic, and essential part of our political system, due to the Isle of Man’s own sets of circumstances. Consensus has evolved over time adapting to accommodate the introduction of the Collective Responsibility Model introduced for government: making way for a ‘Manx version of both models’ and a ‘half way house’ which allows Departmental Members to vote and speak against government (if the point under consideration is not relating to their department), provide for a far more integrated government and parliament and provide for the CM to directly manage their cabinet. It also causes government – the Council of Ministers as they are always in an ‘eternal minority’ to work harder, communicate more and work with Members than other parliamentary models require.

The Manx Consensus Government Model incorporates an option for every Tynwald Member which includes the Legislative Council to be offered an appointment to a government department, or several, and has been part of the consensus style of government adopted by successive Chief Ministers as they have seen it as the ‘best developed / evolved / fit political model’ for Tynwald, governance, and the Island. Although, consensus style government has always been at the heart of Tynwald in one form or another, and an intrinsic, deep rooted part of its makeup. This element ensures all members of the Legislature participate in Government and policy formation – an important distinction and aspect of our model of Consensus Government, but none the less, an important aspect of consensus arrangements. And for good reason as I will outline below:

 There is no party politics in the true sense in the Isle of Man, most Members of Tynwald being independents. Tynwald is a none partisan Legislature  Council of Ministers (government) operate in perpetual minority – a corner stone of consensus  It ensures all Members of the Legislature are involved with government and policy formulation – and meeting an important objective of our consensus model  Utilises all Members experience and knowledge to good effect  A small or micro parliament such as Tynwald is more suited to a ‘consensus style government model’ due to its size. It also ensures there are enough Members to serve on departments for the critical number required for any political team on any department and to handle the various workloads and responsibilities within that department.  The Manx consensus model engenders a far better integration of government and parliament than much larger structures, making for more considered debate, genuine debate – not led by party policies, better understanding of the issues and

87 Functions of Tynwald – Tynwald Select Committee

less tensions as we see with larger institutions and the conflict which often flows from fully blown party politics. Many parliamentary visitors watching Tynwald proceedings have often commented on the ‘good order’ and mannered conduct of Members and quality of debate. Further to that, I question where one would see ‘all parliamentary briefings’ by governments? – another valuable concept to the IOM government consensus model. This also has the advantage of bringing both Legco and Keys together  All Members of the Legislature have now had an opportunity to attend workshops on the formulation of ‘The Programme of Government’ and have had the opportunity of considerable input (very much a validation and important ratification of our consensus model)  The Manx consensus model also ensures that both branches of Tynwald are better integrated and not working in isolation  Such is the nature of consensus Government in the Isle of Man that, unlike the UK and elsewhere, it does not condemn over half its parliamentary membership to taking no active role in government or policy formation  Additionally, this version of a consensus model encourages cross branch (Legco and Keys) membership of government departments, there by negating or certainly lessoning interbranch tensions, promoting a linkage between the branches and promoting better communications between the two. It also encourages a better ‘joint working’ of the two branches when required  Produces a better flow of information / discussion within each branch, in parallel from those departmental Members as they discuss matters in Keys or Legco with colleagues  There is also the aspect of a ‘politically balanced team’ within departments v’s the Senior Management Team to consider. There is no point having a minister who is being ‘outflanked’ by the SMT. The minister requires a large degree of political support in whatever department, not just one Member. For this to be effective we must utilise all the small number of our legislature  This model also gives all Tynwald Members a chance to participate in Government (Collective Responsibility Paper, at references) and build up an invaluable experience base working within departments, and participating at many levels in that work. This is highly desirable as it produces a wealth of experiential learning on an ongoing basis including a large element of updating and acquaintance (and re-acquaintance with existing) of new processes / procedures / policies / working practices: invaluable for any member (old and new) of Tynwald as it builds, trains and enhances - performance, understanding of the functions of government, departments and Parliament (answering in part one of the Lisvane observations of professional development ). In other words it is a critical measure and main plank that ensures Members of Tynwald build up, and on an ongoing basis, enough experience and practice to be as effective as possible – keeping up skill sets and competences.

88 Functions of Tynwald – Tynwald Select Committee

It has the added effect of safeguarding that all Members are directly connected to the issues, policies, legislation and other matters: within their department, wider government, national and international issues. It provides a mechanism enabling both branches to be directly involved in the governance of the Island, greater understanding between branches and prevents a full disconnect which can have the negative effect of working in isolation and the potential of causing tensions between the two branches. So up until this point we have seen all or nearly all Tynwald Members working on government departments because of these and the other factors as explained in this paper.

Tynwald Members being offered a government position, which when added to the Ministerial Vote and that of collective responsibility, which ministers are subscribed up to – can give the cabinet a near majority in the House of Keys (department Members being expected to vote with their minister) and a powerful voting bloc in Tynwald. However, departmental members, if the item for voting upon is not connected to their respective departments, are free to vote as they wish. Departmental Members are also free to vote on issues which may affect their own department in certain circumstances.

So, we end up with an unofficial ‘cabinet party’ and an unofficial ‘back bench opposition party’. This gives us a unique solution to meet our own political functional and national needs in that we have developed a ‘hybrid-consensus model of government.’

 Involving all Tynwald Members in government gives a legitimacy to the Consensus Model of government we use here. All elected and indirectly elected Members are given a chance – and rightly so, to work or serve within government, participate in policy formulation, have and build their work portfolios, but still with the ability to test, examine and scrutinise. It also causes a closer working relationship between the branches – Legco and Keys. This has the important effect of a more stable parliament and political structure and encourages Members to work more closely together for the good of the Island. This is the critical foundation which builds Tynwald into a secure political platform: providing stability – essential for our economy and business in all its forms – and one which attracts business. It is a highly desirable environment for new business to come and operate within. It has also developed to suit our own community environment – what’s best for the Isle of Man.

 We avoid here (neatly, and critically) the often, damaging conflict of direct party politics, or Members being marginalised (not being a Member of a Government Department), which in my view would be wrong for our Island circumstances. It is destabilising and causes unwarranted tensions and uncertainties as we have seen and continue to see in upper and lower houses of other parliaments, and indeed cross branch tensions when one party is trying to dominate a particular house.

89 Functions of Tynwald – Tynwald Select Committee

 The ‘Hybrid Consensus Model’ of government we have here has been developed over the years to our benefit and to meet our own, unique set of political and Island / community circumstances. Any change from the consensus model would undoubtedly bring a more confrontational type of politics which was beginning to rear its ugly head in the last administration. This had a highly damaging effect and was starting to fracture Tynwald and cause a disengagement from the public. If there is a move towards a different political model or structure it will undoubtedly bring more confrontation and tensions within our political system. At this important juncture (where we are trying to balance our budgets, deal with Health Service issues and international threats) it would undoubtedly undermine our Parliament and its branches to the detriment of the island, business and our economy. It is of critical importance, especially in these economically challenging times that Tynwald is pulling together for the good of the island, not distracted with internal machinations.

Now is not the time to take apart a proven, working system in the face of the challenges we are being confronted with. The challenges need to be managed with a resilient, strong, balanced and cohesive system not one which may considerably weaken our political structures and ultimately our parliamentary and government effectiveness.

Power of Executive Government – and – Counterbalance

The Council of Ministers having this powerful voting block clearly demonstrates the other vital element of any upper house, especially ours, and an essential democratic element of a mature parliament: that of providing the ‘check and balance / counter weight to government.’ Legislative Council provides this (part of its very ‘ raison d'être’) when working within its own chamber, usually with government legislation and uniquely within Tynwald when examining and scrutinising government policy and finances with the House of Keys. This is a key point lost in the Lisvane / Scrutiny debates. Legislative Council has the power to block and delay. This allows for a breathing space, further discussion, consultation and a chance for government to make any changes before it brings back any item under consideration. We have seen this with such items as the recent Road Tax Order and Road Traffic Amendment Bill and many other examples. Thus, Showing the value of the check and balance element of Legislative Council.

Political Overview

Having a hybrid collective responsibility / consensus governmental model such as we have in the Isle of Man, which must be unique in parliamentary structures, illustrates how Tynwald has developed and evolved over time to meet the Islands own sets of individual

90 Functions of Tynwald – Tynwald Select Committee circumstances. As in most countries, the Isle of Man has developed its own political solutions and structural make up to best serve its community and meet its own distinctive sets of needs and challenges. Our own in-depth knowledge of our environment and community has determined the development of a political style, in turn generating internally developed methods to best manage issues and meet any challenges facing us – a best fit political model for our own unique sets of circumstances whether they be internal or external. That is not to say we haven’t taken note of other political models, nor being shy in examining other parliaments - we have, and indeed Tynwald being founded on the oldest, with a pedigree bedrock of tradition and history that is prestigious, the envy of many and something to be cherished. Most Parliamentary visitors to Tynwald all remark extremely positively on its structure and make up, many eminent and renowned political analysts in their own right.

We have a system which has evolved where Members of our 2nd chamber work within Government. This is highly desirable as it has the advantage of forging links between both upper and lower houses so that there is a ‘joining’ of responsibilities, not complete separatism, competing systems of power or interbranch tensions as can be seen in other jurisdictions such as the United States – gridlock between the House of Representatives and the Senet at times. This has the very positive effect of producing a parliamentary structure that is more politically stable: creating a platform of security and certainty, something that is hugely valued by our industry and attractive to incoming business. It is obviously hugely important for our community. Tynwald provides this important legislative and political environment, which is responsive to our economy, commerce and community, indeed proven to serve our community well. Therefore, any constitutional change, must be measured, well thought through, and made with great care. Knee jerk reactions should be avoided at all costs to something as critically important as the very platform we build our economy and community from. (As Professor Meg Russell points out. Attached)

The consequences of fundamental or largescale constitutional reform could lead to a weakened, new political structure which is unable to cope, or adapt as well as that which some are seeking to change. We have to also consider in this the impact of the world- famous history and heritage value of our parliament and large range of benefits that this brings to the Island.

We must also be absolutely certain that if any changes, whatever they are, were to be brought in, they are thoroughly thought through, with an impact assessment, are based on facts, evidence and cogent reasoning. Something as important as this cannot be tampered with lightly or on a personal political whim.

Levels of Scrutiny

It must be said that this political model of governance (hybrid collective responsibility / consensus) as a result, does produce high levels of independent scrutiny, and it is actively

91 Functions of Tynwald – Tynwald Select Committee encouraged and progressed. This can be well evidenced and witnessed during any sitting of the House of Keys, Legislative Council and importantly Tynwald as members conduct their business, or as a body, or ‘majority body’. I cite Budget and Programme of Government debates as but two examples. Scrutiny becomes even more heightened and focused within the various parliamentary committees that we have. This is the real picture, and far from Tynwald Members being perceived as conflicted in their scrutiny role, as Lisvane has stated, it is obvious that the opposite is in fact true. This reality of the standard of independent scrutiny has a certain irony to it. Examining our political system from the outside, such as Lisvane has done, has produced a concluding observation that our Consensus Model (Lisvane failed to pick up this model to any degree and why it was developed) is flawed - scrutiny and examination of the government executive could be conflicted by virtue of the makeup of political departmental memberships – all Tynwald Members serving on government departments. However as pointed out, the very opposite is in fact true. If we take more time to examine the Manx Political System, and indeed for those who take a keen interest in our politics, or who have and currently work within it, it can be clearly demonstrated, and evidenced that Tynwald Members have quite considerable independence, freedoms and flexibilities to scrutinise / examine / test - legislation, government policies, make their observations and advance their own ideas and policies, and are far from conflicted in nearly all cases. I would comment that in fact Members are freer in this regard than other systems.

Further to that, the Council of Minister operate a ‘Collective Responsibility Protocol’ which each minister is signed up to – to support government initiatives. However, there are circumstances where a minister does not have to support government policy or legislation if it conflicts with certain criteria laid down in this protocol – such as a declared position, or constituency issue. Thus, giving them some considerable freedom to make objections if they feel they need to. This applies to all Tynwald Department Members relating to their department, although they are not formally signed up to collective responsibility. This again, enhances political freedom and further, lessons the ‘conflicted in scrutiny perception’.

So, the ‘real, reality is’ – is that our main system of government - ‘hybrid collective responsibility/ consensus’ and main structure of Tynwald and Select / Standing Committee Systems work very well, and in special respect to unconflicted, independent scrutiny. One only needs to view the many questions asked in Keys, Legco and Tynwald, Members motions put down, many of our Standing and Select Committee Reports, questions asked, recommendations made, the hundreds of reports produced over the years, changes made as a result and news headlines emanating from these committees to realise that they work very well and are indeed unfettered / un-conflicted. However, that is not to say we could not do better, which will be discussed further on in this paper.

Lisvane and Tynwald Scrutiny Committees

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Lisvane’s view was that our four standing Tynwald Scrutiny Committees should consist of Tynwald Members whose only appointment is to that committee and that it should be the only appointment for MLC’s, MLC’s not being on any government department. He further went on to recommend that there be only one MHK Member for each government department. I am of the view that this is flawed as I am certain Lord Lisvane is examining our system through ‘Westminster glasses’, and implanting what he sees as a best fit way forward for our IOM political and governance arrangements. However as discussed throughout this paper and attachments it is quite obvious and highly desirable for effectiveness and functionality reasons that any review of Tynwald and government functions must be done within the Isle of Man context, which would give a far different picture than which Lisvane paints.

He is advocating a clear departure from our established parliamentary process and government model – and is moving to reforming and disassembly of the ‘main structures of Tynwald and government’ – the foundations or platform from which Tynwald and government have evolved from – major constitutional change. Many political experts have commented upon and given evidence to Select Committees, such as Professor Meg Russell, cited in this paper – knee jerk reactions, or ‘on the hoof’ constitutional reform on a large scale such as Lisvane points us to has its consequences, may not work, has a high risk of failing and least of all have the potential to produce the negative issues I am pointing out in this paper.

Lisvane argues that this would boost the impartiality of these committees, improve scrutiny and transparency. He further states it would improve ‘perception.’ But as pointed out elsewhere, in this paper, in fact, our committee scrutiny process is pretty good. I would argue that Members effectiveness is enhanced by having all Tynwald Members serving on government departments: by building experience, building knowledge and skill sets on those departments which can be put to good use when serving on a committee. Was there a perceptual issue to any degree prior to Lisvane raising it as a potential issue relating to our committees? If there was, it was insignificant, and not one forcing Tynwald to re-examine committee composition.

Far from the ‘perceived conflict of interests’ our Scrutiny Committees operate quite well, and indeed very well in many circumstances as demonstrated in the below paragraphs. This is in part due to the makeup of these committees (which include Legco and Keys Members) and that Members are also serving on government departments. It is a ‘parliamentary consensus model’ if you like – in action. Any conflicts of interest are managed, again described in further paragraphs.

I would argue strongly against the ‘Lisvane view’ that anyone can serve on a committee, and there are ‘stock questions’ to ask. To me that is not going to be an effective committee that can discharge its functions to the standards required. It would be a very week committee indeed. I think the makeup of our committees demonstrate a depth and range of experience, strength and knowledge that is critical to their performance, integrity and

93 Functions of Tynwald – Tynwald Select Committee impartiality. As discussed elsewhere, if there are any conflicts of interest, there are standard ways of dealing with that. Of the few conflicts of interest that have arisen over the years on these various committees (which I have served on, including the PAC) – is very low, and manged well. There has been no problem of such a significance to hamper independent scrutiny where by changes have been required pre-Lisvane.

Of further significance though is Lisvane’s recommendation - ‘one departmental Member only’ on departments with a Minister, and that the four standing Tynwald Scrutiny Committees comprise of MLC’s (their only appointment – not on departments) and MHK’s – who would not hold a government department appointment. This would deplete the numbers available to serve for other functions, leaving ‘departments light.’ Tynwald already functions at near critical mass as a micro parliament in any case – tinkering like this will upset the balance completely and the established models. Current membership levels of the Standing Scrutiny Committees account for fourteen Tynwald Members committed to those roles.

This is nearly half of all Tynwald Members (31 who can actively serve on government departments – 23 Keys and 8 Legco). Given my reasoning below on the Tynwald Membership of Departments, where I outline the impracticalities of having membership capped at one Tynwald Member + Minister, that we are functioning at near ‘critical mass,’ and the obvious benefits of the ‘Hybrid Consensus Government Model’ which should be retained, then this Lisvane Recommendation proves to be unworkable. We would be fourteen Members light to serve on government departments.

That leaves us with 17 Tynwald Members to serve on government departments, less nine ministerial appointments – leaving 8 Tynwald Members to serve with ministers on eight departments (I include the Cabinet Office in this). Given the size, scope and breadth of responsibilities each department has, and the Ministerial support required at departmental executive level, it can easily be concluded that this would be fraught with difficulties to operate, or inoperable.

Attempting to function at this level would also have the immediate effect of injecting a ‘parliamentary imbalance’ where by government would have great difficulty in passing any legislation, policies or indeed elements of any programme for government as its ‘majority’ would be severely cut down. In fact, it could prove unworkable, or paralysing for any government.

At the end of the day, conflict will inevitably arise in whatever endeavour a Member of Tynwald is engaged in, or for that matter any Member of any parliament at departmental or parliamentary level, and when this happens, it is standard protocol for that Member so affected to ‘declare an interest’ and with draw from that area of discussion. If this is within a committee, board or department board, then the other members take up that subject. This has always worked well as the ‘safe guard’ to the conflict of interest’s issue. Yes, the person so conflicted will not be able to take part in that discussion / scrutiny, but their colleagues

94 Functions of Tynwald – Tynwald Select Committee will, and this issue happens infrequently, or to such a low extent as to not warrant a change in processes ‘pre-Lisvane.’ A Member may also have to ‘take themselves off’ something due to a conflict of interests, there by managing and negating the conflict – again this is rare within our system or happens infrequently, and up until now not presented such a problem as to warrant any changes. We follow laid down protocol. This is known by all, and offers a very practical, workable and recognised solution to ensuring transparency and avoiding any conflicts of interest or ‘perceptions of conflict.’

I think it has also been forgotten that - scrutiny – political scrutiny - takes part at many levels not just at a committee level but significantly at – departmental/board level, departmental/divisional level, House of Keys – first stage legislative level, Legislative Council second stage legislative level and Tynwald – policy and finance level. The issue with committee scrutiny is but one aspect of our political scrutiny at all levels which occurs throughout our government and parliamentary system.

The Role of the Legislative Council

Much has been said about this, and the fact it is not fully understood, unclear, and this is causing problems. I think there lies the crux of the matter. If anything, Legco need to be more dynamic in their interactions with the public and informing the public of their role and functions.

However, the calls by some that the role is unclear, I believe are disingenuous to an extent, it has been used more of an excuse for political attack, than carry any real substance. The main functions of Legislative Council in the Isle of Man are very clear as a 2nd chamber:

 Revising body of legislation  Providing the checks and balances on government or executive power – Legislative Council have the power to hold up legislation, motions and secondary legislation if they are concerned  Taking a ‘sober second look at legislation’  Checking on ‘rushed legislation’  Providing important input to Tynwald  Ability to provide Legco Scrutiny within Tynwald and within its own chamber, by way of setting up Legco Select Committees, questions and motions  Taking part in government as departmental Members  Providing a range of knowledge and experience  Membership of Select Committees – Legco, Tynwald  Provide a body of experience and knowledge

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The important functions of a 2nd chamber are well recognised and discussed in my evidence attachments to the ‘Lisvane Review,’ and via substantial references from political analysists.

Power of the Legislative Council – Counter Balance to the Executive 1. Can veto / delay government legislation a. In the 2nd chamber b. In Tynwald 2. Can veto / delay government policy within Tynwald 3. Can commence legislation (almost uniquely) in its own branch. This can be for its own reasons, but also has been used several times recently to assist government in the timely progression of Bills such as the Police Bail and Powers Act, Equality Bill etc - demonstrating importantly a consensus working environment for the good of the island

Constitutional Change

I use the term ‘main system of government’ and ‘main structure of parliament ’above quite deliberately as I feel after working within these structures for nearly 20 years, that the main systems and structures – the pillars of government and Tynwald, are of the correct formation and generally in good shape as Lisvane puts it. I am acutely aware though, that any organisation or institution which stands still will be become increasingly unable to respond effectively to its surrounding environment. I am also acutely aware that any organisation or institution which does not review itself either by external or internal measures from time to time, will suffer the same fate. Ultimately the community it serves, the economy and the positive legislative structure which it should be providing will also suffer.

Therefore, I am wholly and fully supportive of a review of our systems and structures of government and Tynwald – those elements, which are supported by the main structural governmental and Tynwald pillars – not the pillars themselves, to provide those health checks that we need to ensure that these elements are effective, fully and appropriately strategically engaged with our community, economy, environment and international environment. In other words, the procedures we use, protocols, standing orders and other subsequent elements overlaid on the ‘main pillars’ of our parliamentary and government structures.

The main system of Tynwald - a tri-cameral Parliament with an upper house elected by the lower house is a unique democratic/political evolution to our Island and set of circumstances which serves our community extremely well. Equally, the emergence from the 1990s of our ‘consensus government hybrid’ model which has evolved, works well for us and our needs. These two systems have evolved and developed over decades and have

96 Functions of Tynwald – Tynwald Select Committee undergone tremendous change in themselves over the years – step by step. But nevertheless, they have been developed by ‘us’ to meet our own set of political and community needs, unique to our Island setting. Which is why, in my view any changes to our political structure must be undertaken with an island context in mind – this is a very important factor to bear in mind.

I would fully support looking at how we could improve our effectiveness, but not whole sale ‘disassembly’ of the main structures and systems – the pillars, something which works well in the main. This could have the potential effect of destabilising our political system and injecting uncertainty and undermining the platform of political certainty and security that has so carefully been built up over decades: critical for our economy, commerce and community. I think that then leaves us with the observation that - the clarions for change – are they just wanting change for change sake? What is so wrong with our main Tynwald system?

I have observed our government and Tynwald system working as a credible, dynamic, responsive system, with an ability to manage such things as – the 2008 banking crisis, ‘credit crunch’, VAT Share Cut (£200 million) and renegotiation, recalled in an emergency to manage the KSF bank crash and emergency depositors compensation scheme, and managing finances accordingly ever since in an atmosphere of austerity. These have been hugely challenging times and every member of Tynwald has worked together to produce results in managing these issues in the best interests of the island. Our political system up until now has proved itself as immensely resilient, adaptive, responsive and able to cope with whatever has been ‘thrown at the Island,’ and Tynwald has stood firm and proved itself.

Improving Our Effectiveness and Bringing in Changes

As mentioned in the above paragraphs I have cautioned on ‘wholesale or knee-jerk constitutional reform’ – for obvious reasons. However, that is not to say that I am against change - far from it. I would be fully supportive of careful, considered parliamentary change and options that are appropriate to complement our main systems of government and Tynwald. Any changes to our political structure should be of an evolutionary or organic nature – developed and implemented carefully, and, which is a best fit for our circumstances. A good example of how this can be achieved is how the voting system for the Legislative Council was changed - which Legislative Council unanimously supported. This was accomplished through discussion, consultation and ultimately legislation in a carful and considered fashion.

The ‘political body’ (policies, procedures, protocols and standing orders), that have been built up over decades and formed around the main pillars of government and Tynwald is the political face that we see as politicians, use and that seen by the public. It is through this

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‘face’ we conduct our business and which the public sees and interfaces with when in contact with parliament or government. I feel that it is the processes that emanate from the pillars or main structures of Tynwald and government that require review from time to time as in the example of the Legislative Council voting procedure above and other evolved and developed changes over the years, ministerial government to name but one.

I would fully concur with Lisvane with regards to a review of our Tynwald committee processes – not structure or make up: but looking at the remit of these committees, agenda items, standing agenda items and the appropriateness of the work of these committees – what they should be examining and work undertaken. Certainly, they should have the ‘Programme for Government’ as a continuing, main theme. As to the membership – that is appropriate and should be drawn from both branches of Tynwald as is currently the case. There should be no exclusivity to membership of our Tynwald committees as the only preserve of Legislative Council placements, or for Members of the House of Keys as Lisvane indicates. Legislative Council Members should continue to be able to serve on Departments, as should Keys Members. Otherwise we will be in danger of whole sale change of our main Tynwald and government model, which has served us well and continues to do so.

A committee solely made up of Tynwald Members, who are not also Members of Government Departments immediately causes:  A detachment of that bloc of Members  They will gain no full parliamentary experience throughout their political tenure  Gain no government departmental experience throughout their political tenure  Cannot as elected or indirectly elected Members, as expected of them, work on government departments or have any direct input into government or policy formation  Less skills and effectiveness, less experience, disadvantaged as a result

Legislative Council Members – Members of Government Departments – why continue with these positions – further considerations

Observations –

 Occurs extensively in other jurisdictions, and notably in the Westminster Parliament to the extent that we see Government Ministers in the House of Lords. It is also noted that government positions are extensively held in the regional, bi-cameral parliaments of Australia (New South Wales being one example) and indeed the national or Federal Government), also Canada, Czech Republic and India to name but a few. (Information from the Constitutional Unit, UCL, England – ‘Second Chambers Overseas etc paper’) Advantages –

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 A 2nd Chamber Member, or MLC who is a Member of a government department can represent the Government on any matter, be put under scrutiny, and answer direct upper house parliamentary questions directed to the Government or its departments

 A 2nd chamber Member or MLC can support their minister / government in Tynwald from ‘an upper house perspective’ which can be of great benefit to the passing of what ever is under discussion

 Greater ability to progress legislation on behalf of government - introducing and taking carriage of a Bill, as opposed to a Member who was ‘asked cold’ to sponsor a government Bill – who would not be as well placed, briefed or knowledgeable on the subject matter

 A Legislative Council Member, working on a Government Department or Board is at the heart of formulating policy and party to all the reasoning behind that formulation. They may well be in a Departmental subcommittee charged with working up a policy and legislation to address concerns, deficits or otherwise reasons for the generation of that policy and draft legislation. There by building an extensive knowledge base. They will be able to work up as part of this process an intimate knowledge of the drafting of any legislation

 A Legislative Council Member on a Government Department who is tasked with progressing a Bill through the Legislative Council, for that Department has immediate access to that Departments resources such as legislative officers, policy officers and the senior staff involved from which ever Division of that Department is promoting the new draft legislation. This is invaluable to ensure the Legco Member is up to speed with the draft legislation and can ask any questions, cover any concerns or queries, especially which may have arisen from the Bill’s passage through the House of Keys. This will not be as easy for a ‘cold call to sponsor,’ far from it

 Departments do not have to find ‘a cold sponsor’ to engage with from the Legislative Council to progress their legislation, which may have to be done in a rush as legislation passes through Keys. Otherwise a department will have to contact MLC’s to see if they will ‘cold sponsor a Bill’ then that MLC will have to be briefed – which is no small undertaking when they have not been party to a Bill’s rational, inception, consultation etc.

 Being a departmental Member has proved invaluable for me as a Member of Treasury. I would go as far as saying critical in most instances. It would be very, very difficult for a ‘cold call sponsor’ to achieve the same level of knowledge, understanding and access to resources I had for such Bills as the Beneficial

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Ownership Bill and Insurance Amendment Bill. It gave me a huge advantage when presenting such legislation in the Legislative Council and better placed to do so and answer questions when the Bills came under scrutiny and examination. This would be the same for other departments progressing legislation. I would say for our government/political system, it is vital to have a Legislative Council Member as a Departmental Member for this reason alone

 A Legislative Council Member of a Government Department who has been delegated the responsibility to progress that Departments Legislation through the Legislative Council will thus be well placed to do so, and be able to present it with authority and confidence – which is what is required when progressing legislation

 Such a member will be able to answer questions and queries with a much greater understanding, depth of knowledge and greater knowledge base than a member who is not on a government department as the scrutiny process unfolds during the passage of a draft bill

 A member of the legislative Council who is also a member of a government department progressing that departments legislation will also be best placed with more confidence and knowledge in ‘presenting the bill’ to the Legislative Council

 They will be far better able to withstand scrutiny, questions and queries in a more robust fashion than if they were a ‘cold sponsor’ - thereby ensuring that other members of the legislative Council examining the draft legislation would have to be more robust with their scrutiny determining that any such scrutiny would be of a higher standard – in other words, other members of the legislative Council would have to push the boundaries of their scrutinising to a greater level and depth as a result. This would then lead to a point that the draft legislation would have indeed received the benefit of scrutiny at an appropriate standard and depth – making for better legislation

 The above would not be so in the case of a ‘cold sponsor’ - as they would not be able to answer any questions or queries to a depth that a departmental member would. Further they will have to rely continually on any officer’s present at the public gallery to answer legislative Council members questions. Or, they would have to defer the answers to a subsequent reading of the legislation. In a worse-case scenario it could cause the bill to falter if adequate information and answers were not available. Such a member would not be able to answer, certainly, technical questions to any depth or satisfaction of the other members asking those questions. They would also be unable to answer observations of a general nature surrounding the policy or legislation being progressed as they would not have been party to the generation of that policy or legislation and reasoning behind it

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 I have seen this ‘cold sponsor’ scenario played out many times when in all good faith a Legislative Council member has agreed to take a departmental Bill through the Legislative Council to be helpful. But they have been unable to answer questions posed during the scrutiny process of that stage of the bill and have had to either refer to officers present in the public gallery or offer to bring information back at a future stage of the Bill. I have seen this happen many times over the years both in Keys and the Legislative Council and it is quite obvious when a member is unsure of themselves or struggling with progressing legislation they are tasked with moving. An unenviable situation

 There has been much said over the past 12 months in relation to a possible conflict of interests in relation to a member of the Legislative Council who is also a member of a government department – their ability to perform their role in the Legislative Council as an independent scrutineer - if they are also a member of the Department whose legislation is under examination. It is obvious that any member of the Legislative Council who is moving legislation will be championing that particular piece of legislation whether they be a government departmental member or cold sponsor. They will inevitably feel close to that legislation / loyal to it.  The legislative Council member who is moving the legislation does not really form any part of the scrutiny or examination process anyway, – they can’t – they are the one presenting the bill and the one who will be answering to the commentaries, scrutiny and questions of others. It is for the other members of the Legislative Council to perform the scrutinising and examination role. Which is how our system has worked up until now. So, in fact there is no ‘scrutiny conflict’. The process is quite open and transparent whereby one member of the Legislative Council (usually a member of the relevant government department) will move any legislation and be subject to examination and scrutiny by the other members of the Legislative Council. Even if no Members of the Legislative Council where members of government departments there would still have to be one member who would have to champion the reading of any particular piece of legislation – but then they would not be taking part in scrutiny or examination as such themselves by virtue of being that legislative champion for that Bill.

 I would argue that it is far better for the scrutiny process that a member of the Legislative Council moving a bill, also be a member of the responsible government department for the reasons outlined above whereby it strengthens the scrutiny and examination process - and it is a clear and transparent process. Somebody represents the government and the rest of the legislative Council membership performs the scrutiny role. A Legislative Council member moving a bill is what I would call a passive element of scrutiny as they are there to answer questions, queries and comment on points and issues raised during the passage of legislation. The other members of the Legislative Council not involved in the moving of any legislation are active scrutineers whereby it is their role to be involved in active

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scrutiny by way of questions, raising issues and making observations to the mover of the bill – testing out, examining and assessing the legislation before them

 In other upper house examples such as the regional legislature of New South Wales, Australia we see the situation of government ministers populating the membership of the upper house. This to me would be wrong and certainly give legitimate rise to criticism of the impartiality of a reviewing chamber and indeed the other important role of an upper house which is to provide the counter balance to the executive. I would see the Isle of Man example of our own Legislative Council to be a good, practical and workable compromise here where it is desirable in my view to have Legislative Council members as members of government departments but not as ministers (in exceptional circumstances only) and thereby keeping more their neutrality when it comes to performing their Legislative Council roles of scrutiny and counterbalancing the executive. They are also not tied into, or bound by the collective responsibility policy of the Council of Ministers.

 In my experience of working as a member of the Legislative Council – it tends to work as a body corporate and even though where members are members of government departments – they are well able to transcend the government department issue of perceived conflict, whereby Legislative Council work takes precedence. This factor is also assisted by not being a Minister or tied to any collective responsibility. This is true in all but one scenario – whereby if a Legislative Council member by their government departmental membership feels conflicted in any way, when presenting any government business, they are sponsoring as a departmental member, it is up to all the other members of the Legislative Council to provide the testing, examination, assessing, providing opinion and observation to that issue. All Members of the Legislative Council understand this part of their role. As indicated above there will always be one member of the legislative Council championing legislation whether they be a government departmental member or not. However as previously indicated by taking on the role of legislative champion for a piece of legislation that Legislative Council member cannot by virtue of that be in a position to actively scrutinise.

 A member of legislative Council is an invaluable asset as a political member of a government department because of their experience and knowledge whether within the political process or from outside which undoubtedly complements the Minister and his team on that Department

 Having legislative Council members as members of government departments also brings an integration of the two branches of Tynwald together so we have House of Keys and Legco members working together. Otherwise there is a real possibility that the two branches become isolated, and that is where I can see a friction or tension between the two branches become a reality, which would be obviously detrimental, as happens in other jurasdictions

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 Having MLC’s as Department Members also has the advantage whereby if a government policy / legislative matter or otherwise is due for consultation or debate in Tynwald or the Legislative Council, then, the Member of Legislative Council with that responsibility is open to questioning from Legco Peers prior to the debate. Importantly also, that Member can inform Legislative Council Members prior to any debate of the detail of the proposal in advance so there is a chance that they have better information and understanding of that proposal. It also means as has happened in my experience where amendments have been agreed with, using this more informal consultative process – ensures a smoother passage of a Bill through the Legislative Council as a consequence. This demonstrates the Importance of talking, information sharing, understanding and challenging in the background. Also, a ‘cold sponsor’ would be unable to do this, or at a very limited capacity

 House of Lords Reform - Pressure on these issues has grown to the point where there’s cross-party agreement that something must be done, making the prospects for small-scale reform better than they’ve been in years. Reaching agreement on even “timid” measures will be difficult. History teaches us that reformers must embrace achievable opportunities where they can, rather than pursue overambitious goals that cannot be met. In the long term, the benefits can be significant - Professor Meg Russell, The Guardian, February, 2017. Professor Russell points out that reform by evolution or organically achieved proves far more realistic, have a better chance of success and that small reforms add up to large outcomes over time. This gives very credible evidence to the oft used phrase ‘evolution, not revolution.’ I would also argue that some protagonists to this debate are trying to implant UK based, or other political structures, or their own personally held political model in to our own parliamentary system, which, for our Island purposes are inappropriate. We should be keeping our own unique political identity, which holds us out as different, giving the Island great credibility and distinct individuality. This in turn giving us very big advantages least of all making the Island world famous and attracting positive attention. So why would we want some other political model implanted? Especially if ours is working and in ‘good shape?’

This thinking in my view is flawed, as we have a completely different set of political circumstances in the Isle of Man, least of which we do not have party politics in the true sense. We also have a tri-cameral parliamentary structure. Importantly, we have a small population which is proportionately served by a small government and parliament. Political systems have developed in the Isle of Man relating to these factors and as a direct result we have our own unique political structure (government and parliament) that precisely correlates to our own unique set of community / island needs. So, as an over view, are we trying to fit a ‘square peg into a round hole?’ When in fact we should be looking at small, achievable steps that are realistic, practicable, proportionate, best for the Island and don’t unravel all the advantages of our current system outlined in this paper and attachments in reacting

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disproportionally to the ‘clarions of reform.’ We need to be very careful we don’t ‘throw the baby out with the bath water.’

Legislative Council Selection Process

The Lisvane Report recommends a nominations committee be set up, independent and separate to the House of Keys, which currently forms the nomination body for the Legislative Council, and Electoral College. Lisvane makes a further point that no Member of the House of Keys should be nominated.

This is another imposition of other jurisdictional thinking and attempts to resolve the issue of 2nd chamber nominations. I cite my evidence given at Paper 1 (attached below) to the Lisvane Inquiry as to why this is wholly inappropriate for the Isle of Man. This is an attempt to answer a very small minority view of ‘Keys only elect themselves to Legco’ but in fact gains public disdain, such as when the British Premier makes nominations to the House of Lords. As discussed in ‘Paper 1’.

The Manx Model of selection is a very pragmatic way of resolving the nominations issue as opposed to how other jurisdictions operate their nominations / selection processes for memberships of ‘upper houses’. They peruse this either by Government nominations (usually), or by public election. The Manx system efficiently circumvents the ‘democratic argument’ – as the House of Keys votes on nominations – giving partial democratic legitimacy to Legislative Council nominations – causing such nominees to be indirectly elected. Secondly it moves us well away from the popularly elected 2nd chambers such as we see with the American Senate Model – were the Senet becomes the ‘power house’ and can frustrate almost at will the working of the 1st House of Representatives.

Thirdly, Members of the House of Keys are elected by the public, who are in the knowledge that one of their functions is to elect nominations to the 2nd chamber, or Legislative Council. It is part of an MHK’s role, understood by all.

A forth aspect under discussion, which has been widely circulated by a minority, is that the IOM Parliamentary MLC nomination process is heavily geared to solely promote Keys Members to the 2nd chamber. This is blatantly not true, as an MHK can nominate either a fellow peer, or a candidate from out with parliament, such as we have just witnessed with the appointment of the latest Member to the Legislative Council, and indeed other nominations for that position where all from outside Parliament. An MHK is under no obligation what so ever to only nominate a ‘Keys Member.’ As can be seen, in recent times the Legislative Council has had nearly half its membership established from ‘none Keys Members’ – coming from various positions from our community. It may have been something that was prevalent (Keys Members exclusively promoted for Legco nominations) in by gone decades, but there is a sea change to the makeup of the Legislative Council these

104 Functions of Tynwald – Tynwald Select Committee days. Thereby negating in the first instance Lisvane’s so called remedy to this by implanting a UK Nominations system.

Sitting MHK’s should be eligible for nomination, and have the same rights as anyone else to have the chance to be elected to our 2nd chamber. Further, and importantly – this adds to the Legislative Council a good deal of political experience and knowledge which proves invaluable to the workings of Council, which I can personally testify to.

This approach (Lisvane) is I feel, addressing a very small minority view of what the makeup of the Legislative Council should be, but not recognising the situation as a whole or the benefits of having some Legislative Council Members ‘coming from Keys can provide.

The nomination and selection processes used by the House of Keys for the Legislative Council provides an element of democracy, precludes ‘senatorial power,’ negates the tensions that can be caused by an external nominations process and has a mandate from the public to operate this system. Keys Members are free to nominate ‘from within or without’ parliament. In doing so, the Isle of Man political process has painstakingly achieved a method that is the envy of many. It is not perfect, but a lot more perfect than other systems. There will always be some who will criticise, but ironing out such imperfections as the voting procedure for Legislative Council nominees has gone a considerable way to improving the general position.

Discussion

1. Legco does not usually debate Government Policy or examine it like other upper houses, it seems to be exclusively ‘Legislation,’ should its business be increased / expanded? More formal items placed on its agenda as a matter of course? New lines of what should be debated introduced? 2. Legco does not move Bills to committee per se, neither does Keys, Lisvane suggests that Bills go to revamped Tynwald Committees (UK Model, however, they have 650 Members in the Lower House and just as many and more in the Lords) – there would be a time and resource issue here though which means this idea is impractical in the Manx system. Bills are already fully scrutinised line by line in both chambers ‘on passage.’ Either branch has within its gift to send a bill to committee of that branch if it so desires - which does happen from time to time, and Lisvane has missed this to an extent. I cite the Road Traffic Amendment Bill which has recently been through a select committee of the Legislative Council. Further to this when the secondary legislation and orders are brought to Tynwald appertaining to any particular primary legislation – for its enactment – receives full parliamentary scrutiny by both branches working together - providing further examination – unique for us, but practical for the Island and our own situation 3. Could Legco debate in its own chamber for instance the Budget, as happens elsewhere, or other important national policies? As a matter of procedure?

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4. Legco needs to review what types of business, other than reviewing legislation it could or should be doing to add to its order paper as regular items 5. Could Legco sit on further days for additional policy business 6. Function of the House of Lords - make laws, check and challenge the actions of the government, and provide a forum of independent expertise .The House of Lords Chamber spends about 60% of its time on legislation; the other 40% is spent on scrutiny – questioning Government and debating issues and policy. Committee work takes place outside the Chamber. This includes questions, passage of legislation and debates – members motions – House of Lords Official Web Site 7. It is evident to me that both Keys and Legislative Council need to improve their scrutiny and examination processes this may be best achieved by new protocols/standing orders which stipulate processes and procedures for scrutiny and examination 8. We could review the remit, functions and work of our existing four Tynwald Scrutiny Committees – to ensure what work being done is appropriate, effective, meaningful and conducted in the right way. Could these committees be doing their work differently? More focused objectives? Change in remit? New procedures / standing orders governing what type of work should be considered, included? We especially need to review the outcomes of any committee work to test if it is having the desired effects, results and so on – a workshop in this? 9. A hallmark of upper houses is that they are less closely associated with government. Generally, it is the lower house where the government must maintain a majority in order to be safe from removal from office. Only in Italy can government be removed by a vote of confidence in the upper house. Similarly, the number of ministers drawn from the upper house is generally fewer than that from the lower house, and ministers may appear less in the upper house to answer questions, make statements, or champion government bills. All of this makes for a more arms-length relationship between government and the upper house.

This raises some dilemmas. Is it better for the upper house to be close to government, but less independent of it, or further away and potentially more marginalised? These questions are the subject of debate in most of the countries discussed in this chapter. Where government is strongly represented in the chamber—as in Australia— this can be seen as compromising the independence of the chamber. If members of the upper house are seeking ministerial careers they are less likely to remain independent- minded and question the positions of their parties. However, if government appears less frequently in the upper house—as in Spain—this is criticised as a snub to Senators which demotes the importance of the chamber.

The examples of these countries show, however, that the issue of ministers sitting in the chamber may be separated from that of ministers appearing there. Upper house members in Italy, for example, where the Prime Minister and all senior ministers appear before the upper house to answer questions, may be better served than members of the House of Lords, who are generally able to question only junior ministers who may be inadequately briefed – extract from Professor Meg Russell’s –

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Reforming the House of Lords – Lessons from Overseas – 2000, The Constitution Unit, University College London (UCL), published- Oxford University Press. Meg Russell is a renowned political and constitutional reform analyst and has given evidence to Parliamentary Committees.

This discussion clearly shows that the ‘Manx Solution’ - is a very workable and desirable ‘middle road’ to that of being too close to government, or further away and marginalised. It also illustrates the tensions and disadvantages of government represented in the Upper House by way of ‘minister Members’. In the Legislative Council, we do not have ministers, thereby carefully getting around the ‘compromising of independence’ argument in the above discussion or perception. However, we do have, currently MLC’s who are Members of Departments, but not ministers, and who cannot by being ‘a none minister departmental member’ – push a government agenda in the same way. This address, deftly, the other issue discussed in the extract above of ‘being marginalised.’ By having MLC’s as Departmental Members lessons to a large extent the effects of this particular point.

Although government have membership de facto of Legislative Council: MLC’s being members of government departments – MLC / Departmental Members are outside of the Government Cabinet, and not signed up to the collective responsibility protocol, thereby keeping a good realm of ‘scrutiny independence’ and loyalty to the principles of the 2nd chamber. In her closing lines Meg Russell points out to the ‘inadequately briefed junior ministers of an upper house’ – however in the Manx setting, MLC/Departmental Members are adequately briefed in the legislation they are moving on behalf of their departments. It could be argued however, that ministers should appear before Legislative Council to answer questions on policy and departmental intentions and directions. 10. We should consider the concept of ministers appearing before Legco to answer questions 11. We should consider Legco sitting on a different day to Keys, and new start times, especially if we are going to put questions to ministers 12. The number of departmental memberships should be examined as to how many members should be on a department with a minister – in that there should be a policy depending on size of department, and with the minister as to how many members he or she has or considers necessary with them - It is apparent it should be the ministers choice and management style. A minimum set, to achieve correct political balance with the departmental size and makeup of the SMT. This is contrary to Lisvane’s observations as this important element has not been considered, but will need to be considered to have an effective political team 13. The size and scope of some departments is such that a minister could not run it effectively by themselves – I cite Health, Treasury and DED as but three examples 14. A further element that has not been taken in to account is that should all Tynwald Members – elected – directly, or indirectly be given a chance to serve on government as part of that election remit? I believe they should, and a reason they are elected. Certainly by the public

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15. One of the biggest lessons for me, following the Lisvane Review is that of Tynwald and Government engagement with the public so that there is clearer understanding of our political processes and why we do things the way we do.

‘We don’t sell our selves’ or promote what we do as well as we could, there is no doubt about that. We do this to an extent, but it is obvious that much more could be done so that the public more fully understand ‘what it is Tynwald and government’ are about, why these structures are the way they are, and formed. And much more.

Consensus Government - The opportunity for every elected Member to play a direct and meaningful role in the crafting of public policy, regardless of ideology or party affiliation, is viewed by many as the very essence of consensus government – Tim Mercer, 2017, and by this author - as something uniquely special for our Island to keep and cherish – Something the Isle of Man should be very proud of, a system which ably meets our community needs, rising above the complications of other jurisdictions.

R. W. Henderson, MLC, Legislative Buildings, Douglas, Isle of Man July, 2017

Commentary to the Substantive Tynwald Motion of June, 2017 (Comments in red under each item)

On 20th June 2017 it was resolved:

A) And that Tynwald approves the following and refers them to the above select committee to report with recommendations to Tynwald on the changes required for their implementation:

1. Recommendation 2 – Role of the Legislative Council:

a. That MLCs should not vote on measures which are exclusively on taxation or appropriation, and that the Clerk of Tynwald formulate a definition for Standing Orders;

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b. That MLCs should not be Ministers, except in exceptional circumstances. [Report by October 2017]

I cannot go with this recommendation, as it would be a great shame that the Legislative Council cannot vote on matter of taxation and appropriation as they currently do. Legco Members are voted in by Keys to have direct input into legislation and policy, and by de facto an expectation of the public to do so.

One of the most important roles of the Legislative Council is that of a Check and Balance on the power of the executive – this would be lost on these critical aspects – which in my view is essential, given the importance of such government business.

A, b, is fair enough, and noted that the door is not closed to allow for exceptional circumstances. Such as we saw Donald Gelling, MLC return to take up ‘temporary Chief Minister Role.’

2. Recommendation 3 – The Bishop:

a. That the Bishop should remain an MLC;

b. That Tynwald consider whether the Bishop should be included in the quorum of the Legislative Council and whether he should be allowed to abstain. [Report by October 2017]

Agreed to a, uncertain re b

3. Recommendation 4 – A Programme for Government:

a. That the first task of an Administration be to prepare and publish a Programme for Government,

b. The views of the public should be explicitly sought on this Programme; and

c. That thereafter Tynwald approval be required for such Programme on formulation, by means of a major debate, at which amendments to the Programme could be moved, and thereafter annually.

Agreed

4. Recommendation 9 – Diversity:

a. That Tynwald address with energy the need to make its membership more diverse.

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Agreed

5. Recommendation 11 – Training:

a. That there should be continuous professional development training for Members of Tynwald.

Agreed. This is a must in my view. When I was a Member of the Tynwald Management Committee, I had a special budget introduced for this very purpose. However this was lost some time afterwards to ‘old guard scepticism’, and Tynwald Members were not encouraged to engage with training or CPD

B) And that Tynwald refers the following items to the select committee for further consideration to examine and report with recommendations on:

1. Recommendation 1 – Election of the Members of the Legislative Council (MLCs):

a. That the vote be open. [Report by October 2017] Agreed

2. Recommendation 2 - Role of the Legislative Council:

a. The circumstances (if any) where it would be appropriate to appoint Members of Legislative Council to membership of a Department. [Report by October 2017]

I have argued for the retention of MLC’s as department members in my evidence submissions to the committee. I think, and can demonstrate as to why it is important to have MLC’s as Departmental Members least of all the wealth of experience that they can bring with them, in supporting the minister

3. Recommendation 5 – Departmental Members:

a. That appointment as a Departmental Member be made only where it is clear that substantial responsibilities will be assumed in recognition of the salary enhancement; and

I have put substantial evidence together for my submission to the Committee on this matter, as there are clearly functions of the Minister which can be delegated to Departmental Members for most if not all Departments. Some Departments are large and very definitely require two or three Members to support the Minister. But not only that, the Minister does need support at Departmental level in the Department Executive meetings and other Departmental decision making processes so as the politicians can affect the direction of Departmental policy, and are best able to direct Departmental Officers. Not for the Minister to be ‘overwhelmed.’

Further to this, I have argued in my submission on the ‘Consensus Government Model’ that we currently use, and which encourages all Tynwald Members to be Members of Departments, but also to enable the Minister to have a political team on the Department with him or her. This is critical I would argue for support, assistance and ‘fellow’ politicians to confide in and take into

110 Functions of Tynwald – Tynwald Select Committee their confidence re Departmental business, with a politically consistent approach. This is especially true if the Minister wishes some of their own policies to go forward, or more importantly any relevant matters for any Programme of Government.

Working alone, this may prove fraught with difficulty for a minister, facing challenge from executive officers, resistance or tensions towards change, or changing departmental direction. I have seen this many times over the years. It is extremely important to have the political membership and its numbers of a department balanced against the executive officers. I have even seen memorandum’s of decent signed against a minister.

So the wording of Lisvane which is used in 3, a, above looks fine from the outside, from someone who is not used to our unique set of circumstances, could make that comment. However the additional political circumstances I have outlined above have to be taken in to account for our political system, to balance out the weight of executive officers, or counter balance the effects of the executive officer team and this in its self is quite a responsibility, which needs recognition.

I have seen this occur so many times over the years, where an attempt to sway the minister by ‘professional opinion’, ‘professional recommendation’ and officers supporting each other’s views – to get their way with a proposal, or block something. Often, such a proposal may not be in harmony with the ministers observations, the minister’s own view, or indeed the direction of government generally – thus a conflict or tension may occur. With a balanced executive team this can be ‘negotiated’ without ministerial direction which a Minister may have to resort to if acting singularly or with only one other political Member, possibly causing more conflict or ill feeling. A minister operating singularly or with only one political colleague will find it very hard at times to stand up to ‘professional recommendation’ or ‘opinion’, and will feel pressurised, or reluctantly agree to proposals.

MHK / MLC departmental membership gives the support, experience and back up a minister certainly requires.

b. That the pay and enhancements for Members of Legislative Council be reviewed in light of their amended responsibilities. [(b) only Report by October 2017]

I feel this aspect can only be looked at in the light of the other affecting recommendations, and an agreed way forward with them. All Members of Tynwald should be paid the same rate. I also believed the ‘expenses’ element of Member’s salaries should be collapsed into the main basic pay rate, with adjustments made to the corresponding lower pay as a result, then move forward.

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4. Recommendation 6 – Scrutiny:

Not agreed. If we end up going down this route then I have inserted commentaries in red under each sub section. Although I have outlined in my evidence document that what we have now works well – , but with the caveat of not the preserve of MLC’s, (MLC’s should be able to be Members of Departments) the mixed membership of these committees we have now is good and gives balance -

b. That the members of the four principal committees be paid at the same level as Departmental members; only if we go down this route

c. That the Programme for Government be the focus of the reformed Policy Review Committees; fine

d. That the Terms of Reference of the reformed Policy Review Committees set down their key tasks and, if such Committees are able to examine Estimates, that the Terms of Reference of the Public Accounts Committee be amended so that the first limb refer to “accounts” rather than to “papers on public expenditure and estimates”; fine

e. That the Chairmen and Members of the four principal committees have appropriate familiarisation and training concerning the work of the Executive and best practice in scrutiny and questioning; fine

f. That consideration be given to supporting the work of Select Committees of Tynwald through external advice and expertise. Absolutely essential, I have been asking for this for years as an assembly of ostensibly lay people (and I include myself in here) we cannot have the expertise of what is often under examination. For the appropriate examination, and often the depth required, external expertise should be drawn upon. However there is a resource impact to all of this that will have to be taken into consideration. As stated this is essential for any meaningful scrutiny, to any depth.

g. That the Tynwald Auditor General Act 2011 and the Tynwald Commissioner for Administration Act 2011 be brought into force. Yes I agree with this wholeheartedly, but there is a large budgetary resource impact here.

5. Recommendation 7 – Legislation:

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References and Attachments -

1. Evidence submitted to the Lisvane Inquiry by R. W. Henderson – Papers 1 and 2, with references pertaining to and including Parliamentary and Political structural make up and analysis by various experts and Parliamentary working parties 2. Pakistani Parliamentary visit to the Isle of Man and observations to our Tynwald and political structure 3. Nat le Roux, London School of Economics Paper 4. Professor Meg Russell, UCL, England 5. Collective Responsibility a Report by the Council of Ministers, to Tynwald, 2014 6. On the Merits of Bicameral Legislatures: Policy Stability within Partisan Polities 12-12-02 Roger D. Congleton Centre for Study of Public Choice Fairfax VA 22030 On the Merits of Bicameral Legislatures - Roger Congleton 7. POLICY BRIEF Minnesota House of Representatives Research Department 600 State Office Building St. Paul, MN 55155 August 1999 Tom Todd, Legislative Analyst Unicameral or Bicameral State Legislatures - Minnesota House of ...

Also researched in producing this document –

a. Consensus Government in the North-West Territories, Canada – A Parliamentary Panacea? Tim Mercer, Clerk of the Legislative Assembly of the Northwest Territories May 2017 b. Power of Consensus Government, David M. Brock, 2014. ‘Policy Magazine’, Canada

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c. House of Keys Hansards –

a. 1988-10-19 Government Policy Review Debate b. 1989-02-22 Collective Responsibility – Executive Council c. 1989-10-31 Council of Ministers Bill 2r d. 1991-05-22 Constitutional Reform – Office Of ‘Leader of The Opposition’ – Departmental Membership e. 1992-05-26 Council of Ministers (Amendment) Bill Debate f. 1992-01-23 Government Policies and Activities —Appointment Of Select Committee To Scrutinise g. 1994 -01-25 Council of Ministers (Amendment) (No.2) Bill — Second Reading h. 1999-04-27 Appointment of Council of Ministers i. 1998-12-16 Council of Ministers — Consensus Government and Collective Responsibility – Confidence d. Report of the Select Committee on Ministerial Government, Tynwald, July 1999

Paper 1

Review into the Parliament of the Isle of Man The Tynwald Remit –

“That Isle of Man Government should establish an independent review using its powers under the Inquiries (Evidence) Act 2003 to examine the functioning of the branches of Tynwald and to consider options for reform.” The Review is to: ·examine the functions of the branches of Tynwald · assess their efficacy · consider the scrutiny structure required by the Parliament · recommend any options for reform

and to report to the sitting of Tynwald on 19th July 2016.”

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Response to the call of evidence by R. W. Henderson, MLC

Legislative Council – Reasons to Keep the current format:

I intend to major on the Legislative Council as I believe it has the power to continue to serve Tynwald and be an architect of reform.

The below is in note format.

In my opinion LegCo serves as a valuable reviewing and ‘second look’ forum empowered to revise or propose amendments to legislation - most often government and sometimes private members’ Bills - under consideration by the House of Keys. Provides a process for legislation / Bills – to be re-read and re-considered, going through similar stages to that in Keys, thus ensuring an invaluable additional scrutiny process.

This process provides for any errors to be identified and rectified, also opportunities to expand and/or rewrite sections of legislation for the purpose of greater clarity, such as in the case of the recent Road Racing Bill.

There is also a process of deputations which can meet between both branches to discuss legislative issues and find a way forward. This provides a further avenue of scrutiny, review, clarification and amendment, thereby avoiding any potential impasse between the two branches and allowing a solution to be reached acceptable to both sides.

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It also provides for the provision of a LegCo subcommittee Select Committee to examine legislation laid before it then come back with recommendations to the full branch. This has proved to be a valuable exercise and I cite the attached recent LegCo report from one such subcommittee – ‘Report of the Select Committee of the Legislative Council on the Highways (Amendment) Bill 2015 – 2015 – 2016’ as one of the more recent examples of the value of this process.

The work of LegCo in this area can clearly be evidenced in previous order papers (LegCo Order Paper 26th of April, 2016 attached) where extensive amendments to various pieces of legislation can be seen. The author would strongly recommend that the reviewer access at least one year’s worth of previous LegCo and Keys’ order papers to better understand how the process of review sees Bills shuttling between the two branches while legislation is being considered. It is this legislator’s firm belief that this scrutiny model ahead of any legislation being passed is essential for clarity, transparency and parliamentary democracy and is in the interest of every Manx citizen.

The Isle of Man Parliament is technically a micro-parliament, operating at, I would suggest, critical mass in terms of numbers to conduct viable democratic process, functions and requirements. Any fewer in number (which has been mooted by the ‘do away with LegCo altogether’ faction), then I think its functionality would be seriously compromised or become inoperable. The Tynwald System is stretched now: evidenced by the various committees currently functioning; imposing considerable demands on the time of members and of our small administration team.

Therefore to abolish LegCo and move to some sort of committee system, which has been suggested by some as a replacement ‘Keys System’ that would examine legislation coming before the Keys, would not work. In fact, it could have the effect of seriously disrupting the work of Keys as the house would be faced with an over-elaborate system of additional committees for every Bill, which would be totally impractical and unworkable.

The Manx parliamentary structure would then shrink to a point below critical mass and be democratically unsustainable.

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Also separation and impartiality - that loss of ‘examination by a fresh set of eyes’ - would be seriously compromised were there such a small college from which to operate. Furthermore, with Ministers being signed up to collective responsibility, there is a risk of conflict, given the relatively small number of Keys members, all with their various governmental and departmental responsibilities, to act on any one committee.

There could also be, quite justifiably, a perception of bias levelled at such a process. It would also mean that, in the main, Ministers would be seriously compromised if working on such committees. If Ministers were exempted from such committees then that leaves an even smaller, unworkable number of Keys members to undertake such additional work.

LegCo operating separately from Keys as an impartial, conflict-free reviewing chamber works well in the public interest and for transparency. If there is a perception of bias within LegCo performing its functions, where by one Member is also a Member of the sponsoring Department of which that Department’s legislation is under examination - this is outweighed by the number of LegCo Members versus that one Member – negating ‘executive dominance’ in the 2nd or Upper House

The current functionality of LegCo and Keys with the aggregate of both chambers numbers - supplies the required ‘member numbers’ for their roles separately in each chamber and in Tynwald. This is especially so for committee and government department work purposes – working in a viable fashion to answer the above issues relating to ‘a below critical mass.’ In other words keeping LegCo – as their numbers are critical to the operation of our parliament, various parliamentary committees and departmental system. Within those systems LegCo (Members) provide the experience, independence and a separate ‘set of eyes’ to the over sight required in the discharge of such work. Of particular note here is the fact that legislation and our current system allows all Tynwald Members to be Members of government departments – as an accepted part of our political structure – and desired part of that structure. Thus ensuring a full political balance to any department or board membership and input there of.

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A publicly elected LegCo would pose other sets of issues and problems. Would LegCo become a quasi-Senate? Were that the case it would become a parliamentary powerhouse in its own right, something which exponents of reform for LegCo are trying to avoid, and so would present something of a paradox to the reform/abolish argument. Another issue: 32 publicly elected members and or a move to unicameralism? This would have the effect of dismantling Tynwald as we know it. It would produce a whole new political working dynamic. The independent reviewing mechanism and ‘check to the executive’ / legislation would be lost. I don’t think anyone has actually undertaken a full impact assessment of what that could mean and the inherent ‘law of unintended consequences’ that would inevitably follow.

The whole operation of Tynwald - its functions, how members work on government departments, and the ministerial system - would have to be re-worked. It would mean rafts of new legislation, policies and procedures. It would mean a complete sea change of the political / social environment for the Isle of Man: a fundamental change of what is in place now. I can’t see any compelling argument for this. Importantly, no argument has been forthcoming which is factual or evidence based, or can clearly demonstrate there to be flaws of such a fundamental nature as to be causing our political / administrative system sufficiently serious issues to warrant such a deep-seated overhaul and the attendant ramifications.

That there is a second branch to Tynwald via the electoral college of the Keys, causing LegCo Members to be indirectly elected to the Manx Parliament, has proved a very workable and pragmatic parliamentary model and supports the island’s fundamental constitutional development, which also negates the argument that our current arrangements are stifling the democratic process.

LegCo and the composition of Tynwald have undergone fundamental political reforms over the years. These include the removal of the Lieutenant Governor’s ‘chairmanship’ role and of his financial control over the national budget; also removing the power that gave LegCo, and the institutions of the ministerial system and President of Tynwald. I believe the current legislative system is politically sharp and in good administrative shape. This is not, however, to say that improvements - but not radical overhaul - could be made to sharpen it further.

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1 Review the election process of LegCo Members by Keys as the current system can cause weeks of ‘deadlock’, a factor I believe to be a major cause of stress, leading to parliamentary and public frustration. It also engenders much, in my view justified, negative media comment. Further – I feel this issue, singularly, caused the most criticism of LegCo and calls for reform

2 Study other parliaments where a bicameral operation with an indirectly elected or nominated upper house forms part of the structure and see if there are any elements worthy of cherry picking and importing into our system, albeit customised for the Manx parliamentary system

3 A review of what work - apart from its main functions - LegCo should be undertaking; also look at what additional work such as policy / strategic issues it could consider

4 A review of the Keys, LegCo and Tynwald standing orders, as these mechanisms provide plenty of scope for internal adjustments which would provide ‘progression of constitutional development’ in a more pragmatic way, without the need to disassemble parliament

5 Establishment of an Inter House Cooperation Committee

Frequent amendments from LegCo are referred to Keys, good recent examples such as the Road

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Races Bill – which had to be re-written in places - and the Marriage and the Civil Partnership Bill illustrate the effectiveness of what is a fully functional and workable reviewing process.

1. A second chamber / upper house gives the system a ‘check and balance’ to the first house and or government operating within the first house, especially as our executive operates in near majority, as is argued elsewhere in this paper and in paper 2. LegCo provides this function, either as a check on government, or on a Keys initiative that may, for example, have been hastily passed, or ill considered. LegCo can block legislation, delay it and can do so when it operates within Tynwald. It is an invaluable principle for any responsible parliament: to operate a check and balance system. Also an important stay or block to ill-considered change, safeguarding civil liberties and general principles of common law and affording protection to the rights and privileges of a community. This check and balance is also there, should potential constitutional issues arise in the future, providing an element of ‘democratic security’

To have this check and balance to the lower house, any upper chamber (and LegCo) must enjoy full separation and be distanced to be free to carry out this function. Therefore were a second chamber to be formulated from, say, a directly elected Tynwald,’ impartiality – real and perceived – would be lost as it would be an internally constituted committee. The effect would be much the same were there to be some form of unicameralism dynamic. In my view either option represents a step backwards for democracy

LegCo is formed not all at once but on a seat-by-seat basis, and evolves gradually as its membership changes, which gives it a clear sense of separation.

2. Legislation can commence in LegCo – such as recent Treasury Bills and, importantly, the Equality Bill which is being substantially amended

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3. Allows for Bills to commence their passage if there is an issue such as timing when it can’t fit into the Keys’ programme or if Keys can’t take it – such as when the House is dissolved. This is particularly pertinent currently as that is exactly what is happening to some legislation so that it can begin its legislative transit in LegCo then await the new House of Keys. Any Bills commencing their passage now, or in the recent past which had little hope of gaining Royal Assent prior to the House being dissolved in July, would fall. So, Bills such as the crucial Equality Bill, on which the Island’s future international reputation hangs, with its nearly 170 clauses and which has generated much publicity, is one such piece of legislation beginning in LegCo. In this way the Island can demonstrate to the world its robust scrutiny of equality legislation and demonstrate we are keen to progress such legislation

4. Provides the Manx Parliament with an invaluable experience resource base for input to both LegCo work per se and in Tynwald, LegCo members being, in the main, drawn from Keys. Provides continuity and guidance for Tynwald - especially when a new house is formed - and for government departmental work, which LegCo members also undertake and continue when the House of Keys is dissolved

5. LegCo work in Tynwald – using experience base to add to debates

6. LegCo members are easily accessible to members of the House of Keys and the public alike, assisting them whenever and however they can

7. By virtue of its unique role LegCo promotes the Island on many different levels, such as through memberships of the Commonwealth Parliamentary Association, government departments and, of course, Tynwald

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8. LegCo votes separately in Tynwald, providing an invaluable check to government when the branches are in disagreement or a motion to parliament fails. The motion can – but not always - be brought back to be voted on

The number of government ministers and political members of a department can accumulate to a near majority in Tynwald (this is far more evident in Keys). Political members of a department will be expected to vote with their minister, as will all Council of Ministers members, on any government motion, or legislation in the Keys, which makes this LegCo check and balance function always important and, at times, critical. This additional check in the system is possibly unique among parliaments and incredibly valuable as it strengthens democracy. If an item is to be brought back to be voted upon a month later, jointly, as per standing orders, it gives a time frame for discussion to take place and the item to be brought back under a new motion should it have been amended in any way

9. Lego has a unique historical and heritage lineage as it originally consisted of ‘The Lord’s Council’ – the King or Lord of Man. Hence why we have the Lord Bishop and, latterly, the Attorney General as members. It thus forms part of the Manx Parliament, Tynwald, and has done so, most likely unbroken, since its inception by the Viking Kings who ruled Man. This renders the present incarnation of the institution and composition of Tynwald, from a cultural, historical, functional, and identity perspective, unique. It has created a parliamentary dynasty of international repute and respect, one which has and continues to hold the Island in good stead

10. Legislative Council, a chamber in its own right, takes part in Tynwald, when the two branches come together to form the unique tri-cameral or ‘two plus one’ - Manx Parliament – which has a 1000 year history of continuous unbroken service to the Island

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11. Nearly all parliamentary visitors from other countries – Britain and beyond – are very impressed after observing Tynwald in operation, with many envious and favouring the status quo. For the current system to be disassembled would be a travesty indeed. Please see attached note from one such recent visit from the Scottish Parliament, also a press cutting from the Financial Times where there is a call for a ‘two-tier system’ in Scotland to be introduced following a report of concerns that the system there is not working as well as it could because it is suffering from party / executive dominance

12. In its present unique form Tynwald has the power to promote the Island economically, culturally, historically and politically. It is also fundamental to the Island’s international reputation and image, a fact not lost on the government as witnessed from its continual, promotional activities in efforts to boost our economy

13. Crucially the current structure enables the Island to be in charge of its own destiny, to make its own legislation and policies, thus allowing us to shape our way of life, politically, socially, culturally and environmentally. It also means that we are better placed than many other parliaments to respond swiftly and effectively to challenge and change. The current political system offers consistency, stability and certainty as well as a remarkable degree of public accessibility. This, in turn, contributes to resilient economic growth and business confidence, from financial services, aircraft and ship registry to manufacturing, e-gaming and more.

The business sector tells us time and time again that it is our political stability that attracts new and retains existing business. The way I see it is - that we tinker with our political and parliamentary institution at our peril

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The Tynwald of today is delivering on all counts. The Manx Parliament has consistently shown itself to be well placed to cope with any change in the socio- economic/political landscape.

No system is perfect but, in the main, ours works…and works very well. Ironically the minority who have pushed for this review will now see this all the more clearly. The composition of Tynwald is right for the Island, never more so than now given the enormous economic challenges we are facing such as balancing the Isle of Man budget, currently some £75 million adrift; huge Manx Electricity legacy debts; sewerage/Water Authority operating costs; a massive deficit in our public sector pension scheme which, with a diminishing fund, has yet to be addressed; and an unsustainable state pension scheme

Given these factors I think it would be premature to alter the very structure that has delivered our success and proved resilient in the face of challenge. Fundamental change runs the very great risk of altering the parliamentary dynamics to such a degree that the very system on which we have relied, used to promote the Island and which gives us a competitive edge, becomes unstable and unsustainable and could severely damage our international standing. In short, why fix something if it’s not broken?

In the pursuit of ‘we must have reform’ we also run the very great risk of falling foul of the law of unintended consequences and could be left isolated and vulnerable.

I have to raise a ‘red flag’ at this juncture - this island is facing the greatest set of international threats in its history: ‘Brexit,’ ‘the Panama Crisis,’ and unrelenting scrutiny by the G7, G5, OECD, Europe – ECOFIN, FATF, FATCA and MoneyVal to name but a few issues and European bodies involved. The effects of this scrutiny and reform in the name of greater transparency, financial regulation and increased exchange of information place huge additional burdens on the Island and threaten its future wellbeing. I can’t over emphasise these very real

124 Functions of Tynwald – Tynwald Select Committee dangers circling our jurisdiction currently and the potential economic and political damage that could be caused.

Similarly, damage limitation efforts to counter the perception of offshore finance jurisdictions, together with scrutiny reviews by the USA and UK has a major impact on our Island.

Most of these reviews lead to a scrutiny delegation visiting the island, causing an inordinate amount of additional work, pressure and anxiety. I cite the Edwards Review of the early 2000s which was a major UK undertaking and created a huge amount of extra work, and the current MoneyVal review (delegation here now at the time of writing). My point being is that we should be concentrating on these really big, potentially harmful issues and not be side tracked by ‘internal reform meanderings’, so we can navigate the island through to long-term economic security.

I have been a member of Tynwald for nearly 20 years and can honestly report that in all my time and contact with the public, not once has the issue of LegCo reform been raised as a major concern. True, we have had comments and matters put to Tynwald over the years for reform, but it only becomes an issue when it is voiced by a few politicians or aired in the media as an issue focusing largely on LegCo not being directly elected by the public and therefore, reformers believe, undemocratic.

One such argument was during a recent Tynwald debate ( 20th of April, 2016 ) regarding a proposal that challenged the current system of voting within Tynwald. It transpired that what the mover of the resolution was wanting - reform - had already taken place. Much of the historical evidence presented by the mover omitted the fact that there was a Lieutenant Governor in Council who also acted as a presiding officer, and to all intents and purposes, as Treasury minister, so of course there were calls for reforms at that point.

What this debate did, and I’m sure the review will have sight of the relevant Hansard Report, was to confirm that the occasional call for

125 Functions of Tynwald – Tynwald Select Committee reform by minorities is a personal perceptual issue for the mover of any debate on the matter. The call for reform seems to be one of a populist standpoint: it’s a good mantra to adopt and difficult to vote against. The more the reformers’ evidence is scrutinised the stronger my alternate view becomes. It transpires that the evidence ‘for’ lacks depth and the evidence to retain the current system has many benefits and works well. All of which supports my contention that this is a political perception issue rather than a functionality issue, or one generated out of national interest.

Tynwald in its current make up is most certainly democratic, functional, practical, and pragmatic… and it works well for the community and the Island.

Tynwald is an institution which is the envy of many, not least in its closeness to and accessibility by the community. Furthermore, members are not hindered in any way in expressing themselves, putting up private member’s bills, private member debates, questions and scrutiny, much of which succeeds.

No doubt a call for evidence for this review will stimulate responses that may not have otherwise been forthcoming as a major issue. In saying that, I do not intend any disrespect to the review whatsoever, or to the input of individuals, but would merely point out the inevitable.

The deeper we look into ‘our Tynwald’ we find a system that we should be justifiably proud of and support unreservedly as the system best suited to the unique nature of this Island.

Having stated I never had this reform issue pushed at me by a member of the public and certainly not when I have been out canvassing, what I am contacted about are very different issues:  Wages  The cost of living

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 What is directly effecting people’s everyday lives  Pensions – state and public sector  Less disposable income  Cost of heating  Housing  The cost of the Health Service  Recent Government charging policy  Improving the economy  Threats to the Island

R. W. Henderson, MLC 4th of April, 2016

Attachments / Supporting evidence to Papers 1 and 2

1. Report of the Select Committee of the Legislative Council on the Highways (Amendment) Bill 2015. 2015 — 2016 2. Order Papers — Legislative Council — 26th of April, 2016 and 10th of May, 2016. House of Keys 10th of May, 2016 3. London School of Economics and Political Science — Article — 2014— Elective Dictatorship 4. Restraining Elective Dictatorship, abstract, Aroney, Prasser and Nethercote, 2008

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5. Select Committee on the Functions, and Procedure for Election, of the Legislative Council — Report June, 1994 6. Kenyan Parliamentary Delegation Study Visit — IOM — May, 2016 — Study Agenda — Bicameralism in the IOM and ways in which to resolve conflict 7. The Legislature: Bi-Cameralism under the new Constitution — Constitution Working Paper Series No. 8. Society for International Development 8. 'Scottish politics 'dangerously lopsided' — Financial Times Article — 25th of April, 2016 9. Scottish Parliamentary Officers Visit to Tynwald — media release 1 0. Various articles from Tynwald information — giving a 'potted history / reference resource to the Parliament

Paper 2

Tynwald Reform – Arguments in favour of the Legislative Council

Reasons to have an Upper House

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1. Provides checks and balances to the lower house, especially on government legislation and policy which predominantly emanates from the first or lower house. A second house importantly provides a counter balance and check on the level of executive dominance, and to any ill-considered or hastily moved legislation. It also provides for a more measured progression of legislation and / or policy-making. John A. Macdonald, Canada’s first Prime Minister, is quoted as saying that when Canada’s parliamentary structure was founded and provision was being made for an upper house that it would be a place of ‘sober second thought.’(Canadian parliamentary web pages) This exemplifies the importance of a second house as a means of strengthening parliamentary democracy. It also foresees the ’potential’ for any executive dominance / legislation issues.

I cite here, by way of hastily moved or ill-considered legislation – another point that comes into play in the background of my observations - the strain that our legislative draughts people face on a daily basis from government departments and government centrally to have legislation prepared and progressed to parliament (via Council of Ministers scrutiny).

This in turn puts strain on department legislative and policy offices in constructing the initial legislative proposals. This can have an immediate effect on a Bill commencing its passage through parliament: Legislation often ‘receiving’ continual amendments that have to be made to offset the discovery of ‘typos,’ errors, omissions and the need for additions.

2. Lower parliamentary branches can operate by government / party majority / coalitions. In the Isle of Man, we do not have party politics per se.

We do, however, have a ministerial system of government, the Council of Ministers, which results in executive dominance. In the House of Keys the Council of Ministers holds nine votes and works by collective responsibility, to which all appointed ministers must

129 Functions of Tynwald – Tynwald Select Committee sign up, causing them, in the main, to vote en bloc. Furthermore, in the Isle of Man a minister usually has a single department portfolio with ‘junior ministers’, members of Tynwald, to assist. This can be as few as two in number or more, such as the Department of Economic Development which has five, depending on the size of the department and its responsibilities.

These department members are expected to vote with their minister on departmental business (which is ostensibly government business) in the House of Keys or Tynwald. Other Keys or Tynwald members can be canvassed for support as well, especially if there is something the government views as important in the progression of its policy aims.

This situation then gives government, the Council of Ministers, the upper hand or majority in many cases; certainly in the House of Keys, as there are only 24 members.

In our parliament there is an oft-used phrase born out of sheer frustration with this situation: ‘the block vote of the Council of Ministers’ party.’ And to me this is very true when examining the dynamics of proceedings, voting numbers and patterns and the way the Council of Ministers operates. Executive dominance is clear to see in that nearly all legislation transitioning the Keys is government sponsored and with the ‘CoMin / departmental member’ block vote system it is critical to have a second, independent chamber at work to act as a counter balance. This is also true when the executive operates in Tynwald by way of moving government policy and monitory motions.

I cite here the paper attached by Mr. Nat le Roux, published by the London School of Economics and Political Science 2014 regarding executive dominance and its downsides, much of which is true about our system and would be even more so were LegCo removed or its powers tempered further.

Le Roux argues the case that executive dominance is pervading the UK Parliament, rendering it less democratic than at first it might appear. He further argues that the executive can bring about constitutional changes through ordinary legislation in the absence

130 Functions of Tynwald – Tynwald Select Committee of a codified constitution, a situation which, he points out, has an implication of instability. Much of what he describes exists in our own system and I feel we should learn from his observations and apply a good helping of ‘sober second thought’ before we go down a road of no return. What some are calling for (on the Island) – reform, is in fact such fundamental change of a depth and breadth once initiated is almost impossible if ever to reverse.

Le Roux is one of an increasing number of political analysts, reviewers and politicians who are adding weight to a growing argument / debate that we are losing democracy by virtue of increasing executive dominance. This leads me to point out that going down the route of unicameralism would only exacerbate the situation. What we should be looking at are the democratic benefits bicameralism can bring to parliamentary structure.

In their seminal work ‘Restraining Elective Dictatorship’ Aroney, Prasser, and Nethercotte illustrate to great effect the flaws in unicameralism, citing Queensland, Australia as the prime example, and by drawing on observations of other parliaments around the world. They submit compelling evidence to support their view that a bicameral institution far outweighs a unicameral system in terms of practicality and democratic functionality.

In their work they point out in great detail the failings of unicameralism (Queensland) and the rise of executive dominance in the absence of the filter check a second chamber gives.

This is true also in the Isle of Man - government (CoMin) can bring whatever legislation or policy it wishes to Keys or Tynwald, such as the recent raft of proposals to address the Public Sector Pension Scheme deficit, without being answerable to the electorate. Government (CoMin) are free to attempt to introduce whatever they see fit.

In the Isle of Man government achieves dominance through collective responsibility. It places debates, motions, legislation and orders before Keys and Tynwald to give it democratic legitimacy. Yet government usually holds the voting key to this and votes solidly behind its own initiatives in the knowledge that it has the

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potential to win the vote. LegCo is the only vehicle which provides a check to this ‘narrow democracy’.

A stark example of executive dominance in the Isle of Man can be seen in the Employment (Sex Discrimination) Act 2000 (ESDA) which, when on its passage through the Keys, saw this legislator go to great pains to point out that the clauses and exemptions it contained to make exceptions for small business was actually passing legislation that legitimised sexual discrimination, so was inherently flawed. My observations were, however, ignored and the Bill was pushed through by the executive. Very fortunately this point was picked up in the Legislative Council and commentary by the Attorney General brought about an amendment to correct this fundamental failing, which then had to go back to the Keys to be accepted. I can cite many other incidences where this has happened, especially in the case of employment law where the rights of minorities are, quite correctly, protected in the workplace, but the rights of the majority do not enjoy the same level of protection.

This clearly demonstrates the need for a counter balance to the executive and reviewing function the Legislative Council provides. It also highlights another important function: to uphold the rights of individuals, minorities and others and their civil liberties – LegCo being in a prime position to achieve this.

3. A paper produced (attached) by the Kenyan Parliament ‘The Legislature: Bi-Cameralism under the new Constitution’ underscores the values of Bi-Cameralism mentioned throughout Paper 1 and within this paper - fundamental principles which can be transposed to our own system. Obviously there are some inherent differences between the needs of the Kenyan Parliament and our own. However, the fundamentals of what is being highlighted ring true for our own system requirements -

a. Checks and Balances b. Legislative and Oversight functions c. A second look / revision capacity

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d. Ability to enhance quality of legislation e. Hold Government accountable f. Role in formulating policies and legislation g. An ‘Appellate Hierarchy’ h. Improves stability

4. Upper houses provide checks and balances by placing of public questions, oral and written, debate, discussion, examination and analysis of government legislation. It can also provide for amendments and the formation of committees to consider legislation. These bodies can, if need be, serve as a last resort to block legislation or policy initiatives, but usually only for a set period of time, allowing for further examination / consultation.

This is true of the Legislative Council, which provides a valuable reviewing mechanism, a ‘second look’ at legislation which could ultimately affect the community. LegCo or Keys can call for a joint delegation to resolve issues and impasses between the two branches, which puts a substantial check to the tensions argument. So, far from LegCo being seen as a blocking mechanism and the cause of tensions and stresses (previous parliamentary reviews), there are procedures in place to achieve a pragmatic solution to difficult issues, a highly desirable situation for any parliament. Legislation being by and large government legislation makes the need for a second examination all the more valid.

5. Membership of upper houses can be by appointment, such as in the UK and Canada. There are, however, directly elected upper houses such as in the US and Australia. These senate / presidential-type parliamentary formations can give rise to a very powerful upper house (consider the US Senate) with, in some cases, almost equal power as the lower house. There are some checks on this degree of power, but usually a directly elected senate is extremely powerful in its own right, and in some parliaments has powers and functions not enjoyed by the lower house. In this sense the Isle of Man Legislative Council is

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completely different, benefiting from appointments being nominated and voted upon by the directly elected House of Keys – indirect election.

If we accept the principle of a bicameral parliamentary structure how, then, is the second chamber to be formulated? In the Isle of Man numerous committees have been set up over the years to examine this situation, and their reports are no doubt in the hands of the reviewer. Perusing these reports at length I can clearly see the political dilemma these committees faced when struggling to progress the matter, with members, in many cases, having polarised views on the subject. It will be seen that many hundreds, perhaps thousands of hours have been spent, including calls for public evidence, expert opinion sought, Bills drawn up, committees instituted, by Keys, Tynwald and LegCo, to look at the matter of constitutional makeup of the upper house. It is clearly evidenced through the machinations of these committees that they had the greatest of difficulty coping with this political conundrum. In the end, some recommendations came to nothing and in other matters committee members were at loggerheads.

After the experience of nearly 20 years serving in Tynwald, following the various parliamentary reviews, viewing other parliaments and undertaking my own research from time to time, it is my considered opinion that we need to be honest here and face up to the inevitable: that the Isle of Man has the correct parliamentary structure for its own set of unique needs. It may be as simple as that. What we have may be best suited to us and it serves the Island well. It may not be perfect, but it may be the best solution for our parliament and Island.

That is not to say that calls for parliamentary reform are stifled or rejected, as I have pointed out in Paper 1. Far from it, but I would advocate a more considered, evidence-based, pragmatic approach so as not to destabilise and disenfranchise us of the benefits of our current system.

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The Isle of Man Parliament, Tynwald, has a long history of operating an upper house system, the Legislative Council as it is now called. Originally introduced by the Kings of Man as ‘council to the King’ it has stood the test of time, despite having undergone extensive reform over the centuries which has led to its present and quite possibly unique composition and also that it retains a seat for the Lord Bishop and the Attorney General (advisory only)

The membership of upper houses generally is seen as providing a valuable resource of breadth and depth of experience and diversity.

Furthermore it is highly desirable that members be independent of the lower house in order to carry out their functions without fear or favour in a transparent, impartial manner. In my view successful bicameralism is about having an entirely separate distinct branch of parliament.

The way in which the membership of an upper house is constituted has to be very carefully considered. Members directly voted in by the public has an outward resonance to it. This, however, comes with its own set of inherent problems, not least the power base of such a constitution which, in turn, has the very real potential to cause considerable conflict because of equality or near equality of power.

This is clearly indicated in the evidence submissions and analysis provided in the Tynwald Select Committee Report into the Legislative Council of 1994 which is appended – page 31. And I would support the committee’s view that the current system should be retained, coupled with my reasoning in the preceding dialogue

Should a reviewing body such as a second chamber be popularly elected, or formed from a directly elected Tynwald if it is to have a smaller power base with the separation, independence and

135 Functions of Tynwald – Tynwald Select Committee transparency required to provide that ‘sober second thought?’ As it stands, the current system provides a distinct and unconnected second house which amply fulfils those requirements.

Another issue which hasn’t really been brought to the fore in debates on reform is the huge issue of resource in terms of finance, time and additional staffing costs that would undoubtedly be involved were a sea change of such magnitude implemented. Let alone the legislative resource and time required to accommodate the amendments needed for what some are pushing for.

Ultimately this could happen and, taking into account previous committees’ deliberations, runs the very real risk of taking an unacceptably protracted period of time. Some would say ‘a period of procrastination.’ The other risk, in my view, is that we can ill- afford to be distracted by these inward-looking ruminations / procrastinations which steer parliament away from combating national and international threats requiring its full attention.

The resources required would not be only for the dismantling of Tynwald but also for its replacement. There would be the need for legislative platforms, repeals of current legislation, renaming a plethora of current enactments and, most likely, a call for the redrawing of constituency boundaries. In summary, a complete reconfiguration of the existing system. This would be hugely costly and labour intensive. I feel we can ill-afford to be overwhelmed by such inward-looking examination in what are dangerously challenging times for this island (paper 1) when our current finite finances are under extreme pressure. Is this really a priority, given what we are faced with and that, in the main, Tynwald is functioning well?

I ask this at a time when there is no groundswell of public opinion on the matter of reform (there is however a poll being engineered currently, the results of which according to the media are to be

136 Functions of Tynwald – Tynwald Select Committee presented to the review). I think deconstructing our foundations at this juncture would severely compromise the stability and security of a parliamentary system that is serving us well.

Why employ the very machinery which has proved to be resilient over the centuries as the architect of destruction?

The Isle of Man parliamentary system is unique in that it works because it has an upper house selection system using the House of Keys, the lower house, as an electoral college for the nominations of all LegCo Members, voted upon by the House of Keys, seconded by a Member of Keys and a prerequisite number of votes being required to be a successful candidate to LegCo. LegCo candidates are usually, in the main, Keys representatives but nominations can come from ‘outside,’ but similarly must be proposed in the House of Keys by a member, seconded by another and voted upon by Keys.

This incorporates a fair degree of democracy and legitimacy into the process, with the Keys proposing, nominating, seconding and voting on prospective candidates, and for those candidates to need a prerequisite number of votes – a minimum mandate required. Building upon this, it is the Keys themselves as part of their role and functions as individual members to formulate the composition of LegCo by way of the nomination process, and a Member of the House of Keys is elected with that aspect being part of their role. I think this process goes a long way towards ensuring a democratic element is in place; at the very least it goes a long way in providing a considerable check on the ‘not democratic’ argument.

LegCo’s diversity of membership can be seen currently with a former banking director, head of banking and a media business executive together with former Keys members, who also bring a wealth of outside experience, working well together. This also includes the important contribution made by the Lord Bishop and

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Attorney General. By virtue of its indirectly elected status the work of LegCo is able to be undertaken in a much more impartial environment that is the bedrock of independent, unfettered legislative examination and executive oversight. The work is impartial as it is not connected to the Keys or a committee thereof, so cannot be criticised for being biased. By virtue of not being directly elected mitigates the issues that formal ‘senatorial power delays / challenge / friction’ as a body can pose. It does, however, benefit from indirect election, steering our system away from the practices of some institutions’ selection processes and styles of nomination, which gives it a more independent membership together with that all-important democratic element absent from many other parliamentary systems. All of which places the Manx Legislative Council effectively above criticism with respect to bias.

Rarely are there ‘Minister LegCo Members.’ Any government issues under examination would usually only involve one department member via LegCo membership so the independence is retained and, as a body, there is no collective vested interest, which strengthens the impartiality of the reviewing function.

This places the Manx parliamentary system in an enviable position from a structural point of view. This is especially notable when it is viewed by international parliamentarians and officers on study visits to Tynwald. Their feedback is unfailingly positive and they applaud our system as it is…not what could it could be. (Please see attached commentary from a Scottish delegation). By way of emphasising the functionality of Tynwald, its makeup and the point that the current system delivers – we have our fourth Kenyan Parliamentary delegation visit to the Island examining our system. Obviously they hold our system in regard and wish to learn from it, having in recent years re-introduced a bicameral system within their own parliament. Additionally, these visits contribute greatly to promoting Tynwald and the Isle of Man to a wider, international audience.

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Central to this debate is that the Legislative Council is exclusively and directly elected from the popularly elected House of Keys, the Keys using their direct mandated authority to do so on behalf of the electorate. This vital element helps to avoid any potential criticism from which other, less democratically constituted, parliaments can suffer. It also contributes to a better public understanding and acceptance of our current system.

Membership to the Legislative Council is not by basic nomination, eliminating the patronage/undemocratic argument and strengthening a positive public perception of the Manx process, perhaps the envy of other jurisdictions.

This gives the Manx system some notable advantages over other bicameral institutions. The power of LegCo is tempered, so provides a functional, practical and, in the main, acceptable system, with Keys retaining its supremacy. A LegCo member’s office is for only five years; members’ periods of election are rotational and not simultaneous. The branch itself is not dissolved, ensuring an element of continuity, with LegCo providing the new parliament with its experience and knowledge. It is indirectly, democratically elected by the publicly mandated representatives of the lower house, bypassing the nomination process we see in other parliaments, making it a far fairer system.

I have also noted other arguments by protagonists for change: a call for greater democracy and confidence in the democratic choice of the electorate, institutional paternalism, a ‘stress’ between the two branches and limit the functions of the Legislative Council. Arguments have also been advanced that the current process stifles constitutional and parliamentary development and leads to the existence of political tensions. These and similar arguments have re-emerged from time to time in the many studies and reports undertaken over the years for other reviews on the constitution.

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Such reviews tend to be instigated by a minority, whose own views I believe to be subjective, arbitrary, even populist or worst, born out of self-interest. When these criticisms are put forward, at first sight they appear to have some substance but when we drill down and examine that ‘substance’ it is found to be somewhat lacking. It boils down to ‘we need democracy,’ ‘we need legitimacy,’ ‘we need to develop constitutionally,’ or ‘it’s not right’. All these are merely personal / political / perceptual views and ill-considered at that.

Our system works well and is producing, in the main, the results needed. There does not appear to be anything fundamental that is causing serious constitution crisis or hampering the work of Tynwald. The success of other bicameral arrangements would suggest that there really is no valid argument for the fundamental change being sought here on the Island.

In general, Tynwald in its present tricameral or two plus one format - whether working separately or as one - functions well indeed. Legislation is being passed, challenged, amended and examined. Government policy is progressed, passed, challenged, scrutinised, examined and even, in some instances, withdrawn. Members can place public questions, motions for debate and private members’ Bills, as well as call for an amendment to or challenge government policy.

Some challenges will see a government initiative fail. For example the Post Office corporatisation policy, heavily amended in Tynwald, and the withdrawal of a government policy initiative intended to address the Public Sector pension deficit. Many private members’ Bills are successful - as are their motions and policy initiatives - by way of posing a debate / motion or by amendments. LegCo forms an integral part of this process, in many instances supporting back-bench opinions. LegCo can also represent public issues supporting minorities and the disadvantaged.

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It is my firm belief that in the institution of Tynwald we have a ‘best of both worlds’ parliamentary system, the envy of many. This is largely by virtue of having an upper house, with associated powers balanced by the LegCo selection process to ensure it does not have senatorial might, elected by the lower house to strengthen democratic process and oversight. This creates a LegCo that provides an invaluable check, balance and scrutiny filter to proceedings sitting within its own branch of Tynwald, or indeed Tynwald itself.

Our system has long stood the test of time. It is flexible, resilient and forward-looking, more than able to meet modern political challenges and social needs and withstand international pressures. A system that is unique, steeped in history and tradition yet well adapted to the modern world. Which, in my view, is why the Tynwald Select Committee came to the conclusions it did in 1994.

R. W. Henderson, MLC Legislative Buildings

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Tynwald ‘a parliament of great maturity’ declares KPA head of delegation

Mr Sardar Hussain Babak MPA has hailed Tynwald ‘a parliament of great maturity’ and been left ‘very impressed’ by the Manx legislative process after attending briefing sessions with his fellow parliamentarians from the Khyber Pakhtunkhwa Assembly (KPA).

Mr Babak, who led the delegation, said: ‘It has been a very positive and informative experience to learn about the law-making process which gives all stakeholders a voice and reflects the needs of society as a whole, so strengthens the legislative response.

‘We are a legislature of just 70 years of age but what we have witnessed in the Isle of Man is a parliament of great maturity and it has been most rewarding to meet with such seasoned, experienced individuals. We want to bring about change and reform in our society - in education, health, infrastructure and human rights, for example – and engage better with the people. To achieve that needs collective wisdom; this we have experienced during our time in Tynwald.’

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Echoing Mr Babak’s sentiments fellow delegate Mr Raja Faisal Zaman MPA said: ‘I found the briefings on parliamentary committees, their functions and relationship with government, of particular interest. I was also impressed by the opportunities for challenge and the level of freedom of speech enjoyed by all stakeholders. In our country we are all working very hard to bring about change but there are so many issues to be addressed and not everyone is “on the same page”. In the Isle of Man, though, we’ve seen a more collective parliamentary approach that reflects the will of the people. We have gone through some dark periods but we believe it’s never too late to change. We will take back much from our experiences of Tynwald and will work to implement change, but we know it will take time.’

The absence of political parties in the Isle of Man prompted Mr Muhammad Zahid Durrani KPA to say: ‘At home each party has its own ideology which can detract from working towards change. We need consistency of policies. For us it’s now or never. We are blessed with natural resources but cannot match the parliamentary maturity of Tynwald.’

For Mr Abdul Sattar Khan MPA the experience of learning from Tynwald and seeing some of the Island moved him to write: ‘The Isle of Man is the Eye of the Earth and the 10th wonder of the World. The Hidden Heaven Supat Valley in my consistency Kohistan and the Isle of Man are two twin areas of natural beauty and pasture land.’

The July study visit, which also provided an opportunity for delegates to attend the St John’s Tynwald Day proceedings, formed part of a capacity-building programme launched in September 2016 and sponsored by the British Council. By the end of December 2017 it is expected that the 124-strong KPA membership, in groups of around 10 delegates at one time, will have travelled to the Isle of Man for parliamentary exposure and training programmes arranged by the Clerk of Tynwald’s Office. -ends-

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London School of Economics, 2014

Elective dictatorship? The democratic mandate concept has become dangerously over-extended

Against the background of a general breakdown of public confidence in the political elite, politicians on both left and right have seen themselves not as part of a broader governing elite but as outsiders, empowered by their democratic mandate to shake up government and make it more responsive to the wishes of the people. Nat le Roux argues that taken to its logical extreme, the end point of this doctrine is an impoverished political ecology in which the only actor is an omni-competent centralised executive, constrained only by periodic popular election.

There is a very widespread view in Britain that our political culture is dysfunctional. According to the survey carried out for the Hansard Society’s 2013 Audit of Political Engagement, two out of three citizens believe that the present system of governing Britain is in need of significant improvement. When asked how this might best be achieved, a large majority of respondents favoured action to increase the transparency of politics and the popular accountability of elected representatives.

It is easy to see why many people believe that a disjunction between citizens and elected politicians is the primary problem in an increasingly dysfunctional, and disrespected, political system. However this is at best a partial diagnosis. In reality, British politics are considerably more transparent than a generation ago: proceedings in parliament are televised, it is much easier to access many types of government information, and the public and private activities of the political elite are subject to relentless media scrutiny. From the perspective of the ordinary citizen, Westminster culture may appear introverted and opaque, but this is an inadequate explanation for the current malaise felt towards British politics and government.

Less evident to outsiders, but equally debilitating, is the growing and dangerous imbalance of power between the institutions of the state itself. Lord Hailsham coined the term elective dictatorship in 1976, and it is a more accurate description of the political landscape today than was the case forty years ago. Two developments have taken us further down that road. The first is the increasing unwillingness of the executive to respect the independent authority of the judiciary, the civil service, local government and parliament itself. The second is the willingness of governments, especially after 1997, to introduce fundamental constitutional changes, many of them effectively irreversible. Perversely, it is the over-representation of democratic legitimacy as the dominant contemporary political virtue which arguably bears a large measure of responsibility for our current predicament.

The breakdown of the old order

In the great majority of democratic states, a codified constitution specifies the relationship between the various organs of the state and their respective powers. The historic, un-codified British constitution was not rooted in a formal separation of powers, but in an evolved distribution of power between several sources of legitimate authority. The generally harmonious interaction between these loci of authority for much of the twentieth century was the product of complex

145 Functions of Tynwald – Tynwald Select Committee evolution. These relationships were based in part on statute but rooted mainly in convention and precedent. Until comparatively recently, they were sustained by the mutual accommodations of an elite which occupied most of the senior positions across all the organs of the state. Senior figures in parliament, government and the judiciary, as well as the civil service and the armed forces, adhered to a common set of normative values; potential conflicts between authorities were resolved through informal networks, facilitated by shared class and educational backgrounds. Since 1997 this multi-polar comity, the product mainly of historical accident rather than deliberate design, has been subject to increasing strain and now appears potentially more unstable that at any time since the constitutional crisis of 1911.

The shifts in the cultural landscape which began in the 1960s have had a profound influence on political norms. The current generation of British political leaders were formed in an era when ‘the establishment’ had become a subject for satire and all types of institution were increasingly viewed as outdated and potentially malign. Since the Thatcher era, most senior politicians on both left and right have seen themselves not as part of a broader governing elite but as outsiders, empowered by their democratic mandate to shake up government and make it more responsive to the wishes of the people. A natural extension of this self-conception is to believe that elected leaders are legitimately empowered to change institutional structures and overrule other sources of authority as they see fit. Taken to its logical extreme, the end point of this doctrine is an impoverished political ecology in which the only actor is an omni-competent centralised executive, constrained only by periodic popular election.

Credit: UK Parliament

Democracy and executive supremacy

Discussions about democracy often become tangled because the term is commonly used, sometimes simultaneously, in both a broad and a narrow sense. In the broad sense, a democracy is a political system which has the collection of attributes found in the mature states of Western Europe and North America: popular election of governments; an independent judiciary; the rule of law; respect for individual rights; apolitical armed forces and so on. In its narrow sense, democracy means only the appointment of government by popular election.

It is an intrinsic feature of democracy in the broad sense that executive authority is not absolute. Many of the rules and institutions which constrain the actions of elected governments are by their nature not democratic – in the narrow sense – because they are not subject to popular endorsement. To take the most obvious instance: if governments are to operate under the rule of law, then government actions must be subject to review by the courts, and few in the UK believe that judges should be appointed by popular election.

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When British government ministers believe their plans are being obstructed by the judiciary, the civil service or the House of Lords, they commonly now argue that such resistance is politically illegitimate because these are unelected institutions. It is only executive government which has legitimate political power because it enjoys popular democratic endorsement.

The reality of the democratic mandate

It is often argued by the proponents of executive supremacy that a government effectively enjoys a direct democratic mandate because most voters in general elections believe they are voting for a party manifesto and a prime minister at the same time as selecting a constituency MP. Political history suggests that this argument is a very weak one. Two of the last four prime ministers were installed by their parties between general elections, and this has always been an entirely normal route to No 10. Voters in 2010 did not choose to have a Consevative/LibDem coalition government (under the current electoral system there is no mechanism which would have allowed them to express such a preference). Many of the policies of the present government were foreshadowed in the election manifesto of only one of the coalition partners, and some policies were in neither. The coalition’s policy platform is the coalition agreement, negotiated by the party leaders after the 2010 election and never endorsed by the electorate.

If democratic legitimacy implies substantial popular endorsement, then the democratic mandate of recent British governments rests on weak foundations. In the 2005 general election, Labour secured an absolute majority of parliamentary seats but only 35.2 per cent of the national vote. The turnout was 61.4 per cent of registered electors. Thus the Labour government which was in power between 2005 and 2010 enjoyed the active endorsement of less than one in four potential electors.

Additionally, the votes of those citizens who made the journey to the ballot box in 2005 were of very unequal value in terms of their statistical ability to influence the outcome of the election. An increasing majority of parliamentary constituencies are safe seats where, barring some freak event, the result is not in doubt. The number of marginal constituencies – defined as those which can change hands on a 5 per cent swing of the vote – has halved from 166 in 1955 to 83 today. The decisions of a few hundred thousand swing voters in a few dozen constituencies are overwhelmingly important in determining the outcome of general elections.

In a multi-party landscape, a first-past-the post voting system with single-member constituencies will tend to produce governments which enjoy only minority popular support. Unequal constituency sizes, low voter turnout and the recent increase in electoral fraud compound the problem. There are long-standing debates about the merits and demerits of proportional electoral systems, individual voter registration, constituency equalisation and so on. These are important questions, but they are not directly relevant to the present argument.

All electoral systems are to some extent defective but – at least in the absence of wholesale vote-rigging – nonetheless endow a majority in the legislature with legitimate authority. That is a central principle of democracy. But what is the proper extent of that authority in the specific context of the UK’s political and constitutional arrangements?

The sovereignty of parliament

The argument for unconstrained executive authority is commonly based on the doctrine of parliamentary sovereignty. It is asserted that, since Parliament can ‘do anything it wants’ (itself a highly questionable assertion from the perspective of international law), a government which can command a majority in the Commons similarly enjoys a near-absolute constitutional authority.

The reality of party politics, in Britain as in other mature democracies, is that a government’s ability to sustain a majority is not based on an ability to convince legislators by reasoned

147 Functions of Tynwald – Tynwald Select Committee argument of the merits of particular proposals. Although backbench revolts are more frequent than a generation ago, nearly all divisions are along party lines. Bills are introduced and passed into law irrespective of their objective merit because, tout court, the government commands a majority in the House. Most MPs, most of the time, support their own party leadership for a combination of principled and self-interested reasons. Despite the Wright reforms of 2010, it is government rather than the Commons itself which largely determines the Parliamentary timetable and enjoys a near-monopolistic control of legislative processes. At best, party loyalty severely muffles effective legislative constraint on executive action, except in those rare cases where a backbench rebellion is large enough to overturn the government’s majority. None of this is especially surprising or – arguably – objectionable in itself: that is how parliamentary democracies work. However, given the realities of parliamentary behaviour, government claims to an untrammelled and generalised authority may ring rather hollow.

The extent of legitimate executive authority

We should be more willing to question the assertion – voiced by ministers with increasing frequency – that a government’s popular and parliamentary mandate is so strong that other institutions of state may never legitimately resist it. The democratic underpinning of executive authority in Britain is in reality indirect, qualified and compromised, and the concept of democratic mandate, the dominant trope of much contemporary political discourse, has arguably become dangerously over-extended.

Most political commentators, and no doubt a majority of the public, believe that a popular mandate – however imperfect – legitimates any sort of legislative initiative and constitutes a permanent trump card in any confrontation with unelected institutions. Increasingly, ministers seem to share that view, and to believe that it is government, rather than parliament, which holds the trump. This is especially troubling in the absence of formal constitutional arrangements which delineate and entrench the powers of other sources of authority: the courts; the permanent civil service; local government and indeed Parliament itself. It is unsurprising that conflicts between ministers and these other sources of authority in the state have become more frequent.

The new era of constitutional change

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At the same time, the period since 1997 has been marked by frequent constitutional change. Some of these measures have been well-intentioned reforms, some have been self-interested and some have been ill-considered meddling. All these changes have been enacted by ordinary legislation in a way which would have been impossible in almost any other mature democracy. The codified constitutions of most democratic states specify mechanisms for constitutional amendment which are clearly separate from the mechanisms for enacting other legislation. These commonly require a legislative supermajority: in consequence any significant alteration in the existing constitutional arrangements is normally preceded by an often protracted period of scrutiny and consensus building.

In Britain there is no process for constitutional change other than ordinary legislation. As a result, the executive is able to rearrange the architecture of the state at will, irrespective of the views of other state institutions, and at short notice. For most of the 20th century this power was rarely used. Since 1997, by contrast, we have seen successive governments use a simple parliamentary majority to radically overhaul the structure of the judicial system; strip the office of Lord Chancellor of most of its historic authority; introduce fixed-term parliaments and devolve substantial legislative powers to selected parts of the United Kingdom. These constitutional innovations may or may not be good things in themselves, but they are all effectively irreversible. In nearly all cases, these changes were introduced without any process of consultation beyond the incumbent government and generally without endorsement by referendum.

Drifting towards instability?

A pessimist could easily believe that we are drifting towards institutional instability. Governments have become increasingly willing to alter very long-standing constitutional settlements for reasons which often appear short-term and politically self- interested. It seems likely that, even if the Scots vote No, the independence referendum will accelerate the breakup of the United Kingdom. A serious clash between government and the senior judges over the extent of the courts’ powers of judicial review seems increasingly likely. The constitutional position of the civil service is being challenged by the current government in a way which would have been unthinkable a generation ago. Government ministers are increasingly bold in asserting their democratic mandate – or rather an over-representation of it – to trump all opposition. All of this is taking place against a background of the general breakdown of public confidence in the political elite. Not so long ago, Britain was widely admired across much of the world as a model of strong constitutional democracy. It is hard to believe that is the case today.

Note: This article gives the views of the author, and not the position of the British Politics and Policy blog, nor of the London School of Economics. Please read our comments policy before posting. Houses of Parliament image credit: Shane Global CC BY 2.0

About the Author

Nat le Roux co-founded The Constitution Society in 2009. He spent most of his career in finance and was Chief Executive of IG Group plc between 2002 and 2006. He holds and MA in Law from Cambridge University and an MSc in Anthropology from University College London.

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Don’t abolish the Lords. History shows it really can be reformed Meg Russell From its Brexit debate to peers’ allowances, the second chamber has faced intense criticism this week. But it’s undergone huge changes, and can do so again

Meg Russell

Meg Russell is professor in British and comparative politics and director of the Constitution Unit at the department of political science, University College London

Guardian News Paper - Thursday 23 February 2017 19.43 GMTLast modified on Sunday 7 May 2017 17.32 BST

The House of Lords has been in the line of fire this week. During its debate on article 50 there were claims that peers had no right to thwart the will of the House of Commons or the referendum result. As if to emphasise the point, prime minister Theresa May sat in the chamber as the bill was discussed.

And then, ahead of a BBC documentary on the Lords to be screened on Monday, there were allegations about peers signing in to claim their £300 daily allowance while their taxi was running.

Never mind the fact that the chamber was never going to “block” Brexit, and that peers fiddling their expenses are few and far between, these both stirred up familiar calls for Lords reform, in some cases even for its abolition. Mention of the Lords is inevitably followed by mention of reform, as night follows day. Yet little change ever happens. This paradox is worth investigating.

Calls for change are almost as long-standing as the Lords itself – they can be traced back centuries. The Lords emerged from councils of “wise men” drawn together to advise Saxon monarchs, so predates the House of Commons. It gradually developed into a hereditary-dominated chamber which naturally favoured the Conservatives.

In 1958 life peers were introduced, in 1999 most were removed. Small changes matter

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Vilified by the left, major showdowns over the 1832 Great Reform Act and 1909 “people’s budget” fed calls for abolition, ending in the chamber’s veto power being taken away in 1911. The Parliament Act 1911 was seen as a halfway measure, famously stating that a chamber based on “a popular instead of hereditary basis … cannot be immediately brought into operation”.

This proved to be an understatement, despite repeated proposals for largescale reform. One dramatic example was the complex bill abandoned by Harold Wilson’s government in 1968, having got bogged down in the Commons. The Tony Blair government removed most hereditary peers in 1999, but got no further – despite a royal commission, five white papers (making wildly different proposals, in repeated attempts to assuage the critics) and two sets of parliamentary free votes on the options.

When he was deputy prime minister, Nick Clegg blundered into a near- repeat of 1968 when his ambitious House of Lords reform bill was introduced and later withdrawn, following resistance from Labour frontbenchers and Conservative backbenchers.

This catalogue of failure exposes the complexities of second chamber reform. The 2000 royal commission report proposed a new House of Lords with no more than a third of elected members. The 2001 white paper trimmed this to 20%. Both were widely rubbished as too timid, for not proposing a chamber with adequate democratic legitimacy.

By 2007 the government was suggesting a 50/50 elected/appointed chamber – a compromise which succeeded in pleasing nobody. The Clegg proposals, like those of the Gordon Brown government in 2008, sought to replace the Lords with an 80% elected chamber. But rather than appeasing the critics this just attracted new ones, for different reasons: after years of arguments about the need for democratic legitimacy, the chamber was considered too democratic. MPs feared an elected chamber would be less likely to defer to the Commons, resulting in US-style gridlock.

Lords reform could proceed more smoothly if the public cared more about it. But this is a distinctly nerdy issue to most people, who are focused instead on key questions such as the economy or NHS. And when pressed, the public proves as conflicted on Lords reform as are MPs. One poll found that over 70% agreed the Lords should be largely elected to give it “democratic legitimacy”; but over 70% also agreed that it should be largely appointed, to ensure “a degree of independence from electoral politics” and include “a broad range of experience and expertise”. In facing two ways on the question, politicians are at least reflecting public opinion.

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It may seem that the UK is uniquely troubled on these questions, but similar parliamentary conundrums are reflected around the world. Second chambers are common in large, complex political systems; but their central purpose – to challenge the government and elected first chamber – makes them controversial. If they are too different to the first chamber (eg by being unelected) they’re liable to criticism; but if they’re too similar they can be seen as pointless. If they challenge the first chamber, they’re branded “troublemakers”; if they don’t, they’re “rubber stamps”.

Countries such as Spain, Canada, Australia and Japan frequently debate how to reform their (variously constructed) senates. But even where the public criticises such bodies, politicians seeking to reform them can come a cropper. In 2013 Ireland voted to retain its (relatively weak, partly appointed) senate in a government-sponsored referendum proposing abolition. Last December, the Italian referendum to significantly reform the (powerful, elected) senate was lost, forcing prime minister Matteo Renzi to resign.

This points to another paradox: that overzealous reformers can often inadvertently be the enemies of reform. During the centuries of debate in the UK no major reform package has ever succeeded. Nonetheless, it would be a mistake to see the Lords as “unreformed”. Our history is one of small changes, which together add up to a lot.

In 1900 the Lords was still overwhelmingly hereditary, overwhelmingly male and Conservative-dominated. Today most members are life peers, and the chamber is increasingly diverse in gender and ethnic terms. Its party membership is more proportional than the Commons, and non-partisan expert members are selected by an independent commission. It uses its delay power to recommend policy changes to the Commons, which often accepts them. Since 2015, for the first time, a left-leaning coalition of Labour and Liberal Democrats have been able to use the Lords challenge a Conservative government.

This transformation was achieved through a series of small steps, often seen as inadequate when they occurred. In 1958 life peers were introduced (around a century after they were first proposed); in 1999 most hereditary peers were removed. Small changes matter.

Big change will continue to be debated – some hope a reformed second chamber would help to unite the increasingly fragmented UK. But a key question is what the next small changes will be. Here there is cause for optimism. Following pressure inside parliament, two committees – in the Commons and the Lords – are now focused on controlling the size of the chamber. From about 650 members in 1999 it has swollen to over 800, and

152 Functions of Tynwald – Tynwald Select Committee grew particularly under David Cameron’s premiership. There is no cap on the size of the Lords, or the number of members who can be appointed. Nor is there any agreed principle for sharing seats between the parties.

Pressure on these issues has grown to the point where there’s cross-party agreement that something must be done, making the prospects for small- scale reform better than they’ve been in years. Reaching agreement on even “timid” measures will be difficult. History teaches us that reformers must embrace achievable opportunities where they can, rather than pursue overambitious goals that cannot be met. In the long term, the benefits can be significant.

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Council of Ministers

Report on Collective Responsibility

Tynwald 2014

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COLLECTIVE RESPONSIBILITY

1. Introduction

1.1. In the March sitting of Tynwald, the Hon. Member for Douglas South (Mrs Beecroft) moved the following motion:

That Tynwald is of the opinion that the Council of Ministers should investigate alternative systems for ensuring that collective responsibility is enforced in a more open, transparent and democratic way; and report to Tynwald by June 2014.

1.2. The Council of Ministers agreed to review the current system. In doing so, it represents an opportunity to disaggregate the subject from a number of other closely related subjects and educate the reader on the history, evolution, and practice of collective responsibility in the Isle of Man compared to elsewhere.

1.3. In order to do this, we need to look at:

The doctrine o What is Collective responsibility?  Why does it exist?  The practice & who it applies to Different models . The Manx model . The UK . Scotland . Northern Ireland . Other comparative Commonwealth jurisdictions  The absence of party politics  “Block vote”  What decisions does it apply to?  What are the exceptions to the rule?  Enforcement o On the Isle of Man Elsewhere  Could it be more open and transparent?  Conclusions

 Recommendations

2. What is ministerial collective responsibility?

2.1. Ministerial collective responsibility is usually a non-statutory constitutional convention in governments using the Westminster System that members of the Cabinet / Council of Ministers must publicly support all governmental decisions made in Council of Ministers, even if they do not privately agree with them. This support includes voting for government motions and legislation in the legislature.

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2.2. The convention is similar to, but not the same as, individual ministerial responsibility, which states that ministers are responsible and therefore culpable for the running of their departments, which falls outside of the scope of the review. 2.3. A distinction must also be made between Ministerial collective responsibility and the party whip, where different rules and flexibilities apply. There is however the assumption in a party system that the ruling party can rely on the support of all of its members for most votes, but certainly in matters of confidence and those designated as ‘3 line whips’. 2.4. Whilst the method of appointing and firing ministers by the Chief Minister or Parliament is mentioned in some of the jurisdictional comparisons, it is not a fundamental precondition for ministerial collective responsibility.

3. Why does it exist?

3.1. In its simplest form, collective responsibility exists to provide certainty and cohesion to Government so that the public can hold that Government to account. Without the discipline imposed by collective responsibility, the centrifugal forces inherent in a Government of individuals – whether members of a political party or not – would significantly undermine the ability of voters to understand what the Government was seeking to achieve and to pass judgement on its performance. 3.2. In most Westminster style systems, collective responsibility is related to the fact that, if a vote of no confidence is passed in parliament, the government is responsible collectively, and thus the entire government resigns. The consequence will be that a new government will be formed, or parliament will dissolve and a general election will be called. 3.3. The convention can be traced back to the early part of the 18th century and the rise of importance of the Monarch’s ministers who began to exercise Royal prerogative powers and represent the Crown in parliament. After many occasions where the monarch used “divide and rule” between his ministers, it was concluded that they should collectively provide the monarch with the same advice as his cabinet (named after the room where Ministers were summoned to meet the monarch, often individually). Collective responsibility was certainly established practise by the mid- 18th century. 3.4. As with many other jurisdictions, in the Isle of Man, votes of no confidence are in the Council of Ministers collectively1. There is no mechanism for requiring the Chief Minister, or any other Minister to resign other than by this method. It follows that Council of Ministers stand or fall as a single team. 3.5. Rhodes, Wanna and Weller2 offer this description of the principle of Cabinet solidarity in Westminster systems of parliamentary democracy: "Cabinet solidarity and collective responsibility are twin dimensions of responsible party government that enjoy constitutionality, albeit informally. They lie at the core of ministerial governance. Cabinet solidarity is purely a political convention designed to maintain or protect the collective good as perceived by a partisan ministry. It rests on the notion that the executive ought to appear a collective entity, able to maintain cohesion and display political strength".

1 Council of Ministers Act 1990 s.2(3)(b) 2 Rhodes, R.A.W.; Wanna, John; Weller, Patrick (2009). Comparing Westminster. OUP. p. 127. ISBN 978-0-19-956349-4.

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3.6. There are four main reasons for advocating collective responsibility: 3.6.1. Avoiding presidentialism: We do not have a presidential system of government and the Chief Minister, is formally primus inter pares amongst his colleagues. Because our governments share collective responsibility, we do not expect all decisions to be taken by the Chief Minister. Moreover, Westminster style systems lack the formal separation of powers which in most systems of presidential government (including, most notably, the USA) provides an essential safeguard against the concentration of too much power in the hands of one person; 3.6.2. Cohesion: Governments which take decisions collectively are more likely to be cohesive than those which do not. This does not mean that such governments will be cohesive, still less that they will be successful, but merely that cohesion is more likely to be achieved if the more senior Ministers have had an opportunity to influence the government’s decisions. As noted above, it is this cohesion which helps hold a Government to account; 3.6.3. Joined-up policy-making: The major policies that affect the business of only one department are few. Public policy is inter-connected and the actions of one department can have an impact on the responsibilities of others. Often the interactions are not obvious. Also some of the most difficult and intractable social problems straddle the responsibilities of a number of departments. These connections are more likely to be made if decisions are taken collectively: indeed, our system of collective decision-taking is designed, inter alia, to provide a safety mechanism to identify collateral effects of proposals of which the originating department may not have been aware and it frequently does this. In doing so, it both highlights silo thinking and presents an opportunity to overcome it corporately; 3.6.4. The need for challenge: No one has consistently good judgment and we are all influenced by our own experience and preferences. We all make mistakes. Decisions taken collectively are more likely to be soundly based than those taken by a single Minister (including by the Chief Minister). This does not mean that all decisions have to be taken collectively or that those that are will invariably be better than those that are not. It does mean, however, that bringing several minds to bear on the more important decisions is likely to produce a better outcome because there will be a degree of challenge within the decision-making process.

4. The Manx Model

4.1. The Manx model has evolved considerably since the matter was last formally reviewed by Tynwald through the Select Committee on Ministerial Government in July 1999. In the Isle of Man there are two forms of collective responsibility. The first operates at Council of Ministers level and is broadly similar to most other Westminster based models. The Council of Ministers policy is contained in The Government Code of 2011, and the relevant sections are replicated in Appendix I.

4.2. The Code sets out some of the practical implications of the convention as well as setting out 5 exceptions to it, circumstances under which Ministers have freedom to speak publicly against policies and decisions of the Council of Ministers or without reference to Council: Matters of Conscience; A Declared Position; Constituency Matters; Inconsequential Matters and Unresolved Issues.

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4.3. The second form operates within each of the Departments (but not Boards), along similar lines. The Government Code extends the convention of collective responsibility, and the exceptions therein to Members of Departments, unless they have been positively excluded from the formulation of the policy in question.

5. United Kingdom

5.1. In the United Kingdom, collective responsibility extends to all those holding office as Ministers and, since the 1970s, to Parliamentary Private Secretaries (PPS’s). This is known as the “payroll vote”. Whilst the number of paid Cabinet Ministers, Ministers, Whips is capped at 109 across the House of Commons and Lords3. However, in the British Government, this has been circumvented by appointing unpaid Ministers (including PPS’s) who are subject to collective responsibility.

5.2. The range of collective responsibility extends further in the UK system as decisions of sub- committees of the Cabinet are also covered. It is the case that even though UK Ministers may not have had a say in a particular policy, they are bound to support and defend it.45 5.3. Since 2010 the UK has been governed by a Coalition, adding a further dimension to the traditional operation of the convention of collective responsibility. The Coalition Agreement, which underpins the Government’s programme and sets its terms of reference, was negotiated during May 2010 in the days after the general election. It started at seven pages long and now covers 31 policy areas from banking to Universities6. It is, of course, only a summary and decisions on interpretation are determined by the “The Quad” of the Prime Minister David Cameron, Deputy Prime Minister Nick Clegg, Chancellor George Osborne and Chief Secretary Danny Alexander6. 5.4. The Quad "decides all major matters of policy" such as the budget priorities. As such it is at the heart of collective responsibility in the UK Government. It is very much a party political body rather than a Government body as civil servants are not always present at its meetings. The Quad's power helps explain why the Coalition may be perceived as a government that is more politically balanced between the Conservative and Liberal Democrats in policy terms despite the Conservative dominance of numbers around the Cabinet table. The Liberal Democrat team controls half of the votes in the Coalition's sovereign chamber of The Quad. The Quad has limited other ministers' freedom to manoeuvre. Decisions taken by the Quad are handed down to other ministers to implement although other ministers are sometimes invited to participate in Quad meetings on a case-by-case basis.

5.5. Compared to the UK where all members of the Government, no matter how junior are subject to collective responsibility, the Isle of Man represents a ‘halfway house’. The split between Council of Ministers (where members have to support all

Government policy) and Departmental (where members have to support all Department policy) collective responsibility conventions is a natural consequence of the Isle of Man’s

3 Ministerial and other Salaries Act 1975 4 Wilson, H (1976) The governance of Britain, p.74 5 de Smith, S A and Brazier, R (1998) Constitutional and administrative law, 8th ed, p.201 6http://webarchive.nationalarchives.gov.uk/20100919110641/http://programmeforgovernment.hmg.g ov.uk/files/2010/05/coalition-programme.pdf 6 D’Ancona, M ‘In It Together: The Inside Story of the Coalition’ London: Viking 2013 pp. 47-48

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consensus government, where most politicians are invited to take on some Government role.

5.6. The absence of pervasive party politics precludes further concentration of Council of Ministers’ policy making power into fewer hands as achieved by the Quad. This also further complicates the landscape for determining a programme around which Government can coalesce, as there is no “higher authority” to provide interpretation or direction. It necessarily follows that only Council of Ministers can judge what is ‘in or out’ of the government programme and the scope of ministerial collective responsibility.

5.7. There are certain policy areas which are worked up through Council of Ministers

Committees, but in all cases the final policy decisions rest with the Council of Ministers as a whole and all Ministers have the opportunity to contribute to policymaking.

6. Scotland

6.1. In Scotland, collective responsibility is set out in section 52 of the Scotland Act 1998, and detailed in the Ministerial Code7, and also enforced on junior ministers outside of Cabinet. It states at 2.1 “The Scottish Government operates on the basis of collective responsibility. This means that all decisions reached by the Scottish Ministers, individually or collectively, are binding on all members of the Government. Ministers are required to abide by them and defend them as necessary. The principle of collective responsibility requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed and advice offered within the Government should be maintained.”

7. Northern Ireland

7.1. Northern Ireland does not have a formal system of collective responsibility for the Executive. There are 15 members of the Executive out of 108 Assembly members8. The Executive is made up of nominees from each of the political parties according to their parliamentary strength. The Executive’s powers are set out in the Good Friday Agreement9. They include:

• The duties of the First Minister and Deputy First Minister will include, inter alia, dealing with and co-ordinating the work of the Executive Committee and the response of the Northern Ireland administration to external relationships. • The Executive Committee will provide a forum for the discussion of, and agreement on, issues which cut across the responsibilities of two or more Ministers, for prioritising executive and legislative proposals and for recommending a common position where necessary (e.g. in dealing with external relationships). • The Executive Committee will seek to agree each year, and review as necessary, a programme incorporating an agreed budget linked to policies and programmes, subject

7 http://www.scotland.gov.uk/Publications/2011/12/01141452/3 8 http://www.northernireland.gov.uk/index/your-executive.htm 9 Paras 14-25 of Strand One http://news.bbc.co.uk/nol/shared/bsp/hi/pdfs/07_12_04_ni_agreement_02.pdf

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to approval by the Assembly, after scrutiny in Assembly Committees, on a cross- community basis. • A party may decline the opportunity to nominate a person to serve as a Minister or may subsequently change its nominee. • All the Northern Ireland Departments will be headed by a Minister. • Ministers will have full executive authority in their respective areas of responsibility, within any broad programme agreed by the Executive Committee and endorsed by the Assembly as a whole. 7.2. From the above, it can be seen that the Executive is a closed doors negotiating space for trying to resolve issues between party representatives based on parliamentary strength. There is no collective responsibility. There are however, other complex constitutional safeguards where any one party disagrees with the majority10. It could be said that Northern Ireland takes consensus to the extreme, as 60% of the assembly vote is required in certain instances, including at least 40% of both Unionist and Nationalist members. A corollary is that there is no formal system of opposition in the Northern Ireland Assembly. 7.3. It appears from the above that the Northern Ireland Executive is more similar to the UK Government’s “Quad” arrangement (see 5.3) than the Manx Council of Ministers. It has been criticised by many within Northern Ireland, such as opposition party NI21, who state “Based on current voting patterns and the D’hondt system of distributing Ministerial seats, the majority of larger political parties are guaranteed a position in Government. Rather than leading to compromise, this has led to Government run in silos, with each party delivering and maintaining its own distinct mandate. Cross cutting issues usually result in ‘lowest common denominator’ policies being developed or decisions being deferred indefinitely or rejected. This leads to ineffectual and bad government and governance in Northern Ireland and is resulting in increasing levels of voter disengagement and diminishing voter turnout.”11 It was exactly this criticism that lead to Tynwald adopting the Ministerial system in the first place.

7.4. The absence of collective responsibility, its fundamentally deep seated partisan nature and wider challenges of peace and reconciliation do not provide a positive role model for others to follow. The idea of a Programme for Government is but a statement of collectively agreed policy by all parties, rather than an executive’s driving force.

8. Wider Commonwealth comparison

8.1. In Canada, the Council of Ministers is on rare occasion allowed to freely vote its conscience and to oppose the government without consequence, as occurred with the vote on capital punishment under Brian Mulroney. These events are rare and are never on matters of confidence. The most prominent Canadian Council of Ministers minister to resign because he could not vote with the Council of Ministers was John Turner, who refused to support wage and price controls. In Canada, party discipline is much tighter than in other Westminster-system countries; it is very rare for any MP to vote counter to the party leadership.

10 Community Designation: http://www.niassembly.gov.uk/researchandlibrary/2010/10210.pdf 11 http://www.ni21.com/-news/reforming-the-northern-ireland-assembly#.Uy_2q97iuzl

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8.2. Similarly, in Australia on occasional issues (such as the 1999 republic referendum), there may be a conscience vote where any MP may vote as they wish, but these issues are rare and never tied to official party policy, and normally party discipline is very tight as it is in Canada.

8.3. In New Zealand, Collective responsibility is not circumvented by appointing people to Government posts outside of Council of Ministers. From 2005 to 2008, Winston Peters and Peter Dunne were Ministers outside of Council of Ministers, despite their parties not being considered part of a coalition, they were still subject to collective responsibility.

9. In the absence of party politics

9.1. There are few comparative jurisdictions in the world that operate a system without party politics. The Canadian Territories of Nunavut and Northwest Territory operate very similar systems to each other, there are also models in Vanuatu and Tuvalu. Our near neighbours in the Channel Islands also have comparable, but not identical systems of Government to ours.

9.2. Nunavut has a population of 31,906 (2011)12 and operates a 22 seat legislative assembly, where a Premier and cabinet is elected by the Members of the Legislative Assembly13. Collective responsibility applies, although Ministers are accountable to (i.e. hired and fired by) the parliament, rather than the Premier over breaches.

Although the Premier may move Ministers between portfolios. No collective “programme of government” is issued. Notwithstanding this weak model of executive Government, “MLAs frequently complain that they are ignored by cabinet, that consensus government is a sham, and that ministers are arrogant and unaccountable in the exercise of power”14. 9.3. Tuvalu has a population (2012) of 10,83715. The number of Ministers may not exceed 1/3 of the number of MPs16. The Cabinet is collectively responsible to Parliament for the performance of the executive functions of the Government.17 There is no programme published relating to cabinet responsibility, which appears to apply to all decisions.

9.4. Jersey has a Ministerial system of Government, but does not currently have the system of collective responsibility. According to a press release by the Island’s Chief Minister on 18th March 201418, and following two years of consultation, they are seeking to introduce collective responsibility. This also comes alongside other measures recommended by a Parliamentary Committee1920 to have the Council of Ministers elected as a block, rather than individually. It is unclear how it will work, although Ministers will be expected to exercise collective responsibility on the strategic plan which is agreed by the States.

12 http://en.wikipedia.org/wiki/Nunavut 13 Legislative Assembly and Executive Council Act S.Nu. 2002, c.5 14 White, G. Cabinets and First Ministers 2005 P.61 (Canada) 15 http://en.wikipedia.org/wiki/Tuvalu#Constitution_and_government 16 Tuvalu Constitution para 62(3) 17 Ibid. Para 74 18 http://www.gov.je/News/2014/pages/MachineryOfGovernment.aspx 19 http://www.statesassembly.gov.je/AssemblyCommitteeReports/2012/2012.08.06%20Consultation%2 20 Launch%20Web.pdf

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9.5. Guernsey has had a Committee system with Ministerial titles since 2004. Collective responsibility has been advocated as part of a wider review of the Ministerial system which is due to report this summer.21

10. The “Block Vote”

10.1. A regular feature of the criticism attributed to the Manx system is that it is difficult to tell where Government ends and Parliament begins. This is especially peculiar to those coming from a country with a party political system.

10.2. It is peculiar to many that a Member of a Government Department may be considered “in Government” on motions affecting a Department of which they are a member, whilst they are free to vote for or against Government on all other matters without repercussions.

10.3. Such is the nature of consensus Government in the Isle of Man that, unlike the UK and elsewhere, it does not condemn over half its membership to taking no active role in Government and policy formation. Members of the UK governing parties who are not within the Government are bound through the party system to vote for policies they have had only a peripheral say in. In the worst case, members of a governing party may have stood on a manifesto which has had fundamental parts of it renegotiated by a coalition agreement which they may have had no say in at all. The Manx system does seem preferable, especially when there is the ability of members to have a say in which Departments they are willing (or not willing) to be a member of, and are frequently offered more than one.

10.4. As in other jurisdictions, there is a difference in pay between Members taking on one or more Government jobs and those who are not engaged in Government work (with the exception of the Speaker)22. The current arrangements are as follows:

Role Total Pay23

Chief Minister £75,894.38 Speaker £68,268.69 Minister £64,410.85 President of Tynwald £64,410.85 Chairman of a Statutory Board & Department member, or a Member £60,553.01 of Treasury24 Member of one or more Government Department25 £56,695.16 Chairman of a Statutory Board only £48,979.47

21 http://www.gov.gg/article/109868/States-Review-Committee-update---Statement-by-the-ChiefMinister 22 The ‘pay gap’ is not as great in the Isle of Man as it is elsewhere. The UK Prime Minister earns £142,500 compared to a backbench MP’s remuneration (excluding allowances) of £67,060. For further information see House of Commons Research Paper 13/33 ‘Members’ Pay and Expenses – current rates from 1 April 2013. 23 Including the expense allowance. 24 With the exception of the Communications Commission. 25 There is no additional money for serving on more than one Department.

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“Backbencher” – no Government role26 £45,121.63

10.5. Whilst it is outside the scope of this paper to review the scales, the accusation is that the Chief Minister can control votes via patronage. There is no simple solution to this. By operating a more partisan system, more Members would be left outside of Government, making the matter more acute. By guaranteeing every Member a role, there are accusations that the differential between those who take on greater responsibility receive only a marginal reward over those who may choose to do very little.

10.6. On a Departmental finance motion the “block vote” could be said to be Council of Ministers, Treasury, and Departmental Members. The table below gives an illustration of the expected results from a DHA, DED or DOI motion. It should be noted that this gives Government a majority of between -1 and 2 in the House of Keys and no guarantee of a majority in the Legislative Council. This could be said to reflect the expected maximum size of the “Government party” in the legislature under the current political memberships.

Keys LegCo Total Council of Ministers 9 0 9 Treasury 1 2 3 DHA 1 1 2 Total 11 3 14

Keys LegCo Total Council of Ministers 9 0 9 Treasury 1 2 3 DED 3 2 5 Total 13 4 17

Keys LegCo Total Council of Ministers 9 0 9 Treasury 1 2 3 DOI 4 0 4 Total 14 2 16

10.7. If a Member is on more than one Department, they can resign from one Department without loss of pay. As such, any close vote is carefully considered and actively lobbied on by the Council of Ministers.

10.8. In the few other jurisdictions without party politics (see 9) it is not uncommon for the parliament / assembly to elect the Council of Ministers either individually or en bloc. From the research undertaken, this has no impact at all on the principles of the doctrine of collective responsibility. It has served to complicate the process for removing ministers found to be in breach of the Ministerial Code, and makes it subject to Parliamentary oversight.

26 It should also be noted that Vice Chairmen of Statutory Boards receive no additional sums. Likewise there is no further remuneration irrespective of the number of parliamentary committees served on.

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Which decisions does it apply to?

11.1. It is clear in the Government Code that collective responsibility applies to all decisions of Council of Ministers. Paragraph 1.27 of the Code states “Where the policy of a particular Minister is being challenged, it is the Council of Ministers as a whole which is being challenged. Thus, the defeat of a Minister on a major issue represents a defeat for Council.” This is in order to preserve the “notion that the executive ought to appear a collective entity, able to maintain cohesion and display political strength” as outlined in 3.5 above. 11.2. During the debate Mrs Beecroft raised the parallel with the Northern Ireland system of producing an agreed programme which is subject to collective responsibility, with everything else being outside of this. Direct comparisons between Northern Ireland and the Isle of Man are difficult; the former is a devolved administration with limited powers with a very difficult and divisive recent history. Moreover, given that Council of Ministers is formed of nine individuals rather than two, or maybe three, parties, it could take exponentially longer to agree the “programme”. However there is a mechanism within the nomination process for Chief Minister which could be taken to represent this programme. 11.3. All candidates for Chief Minister have to present a statement of policy priorities to Tynwald and this statement forms the policy basis on which Members of Tynwald cast their (secret) ballot for Chief Minister (see Appendix II). 11.4. This could mean that any situations arising subsequently would fall outside of the ambit of collective responsibility. Whilst these could be minor, they could also be quite significant, such as pre-school education or the Sefton bailout. In such circumstances consideration has to be given as to whether such significant matters are matters of confidence in and for the Council of Ministers, whether dissent on these matters would have undermined its ability to maintain cohesion and display political strength, or whether a free vote could have been exercised without undermining the collective integrity of Council of Ministers and its ability to govern. 11.5. Both of the situations above were divisive both within and outside of Council of Ministers. Both were the recommendations of individual Ministers who required Council consent for such a significant change in policy. If a free vote existed, it would be unlikely that both of these motions would have succeeded. 11.6. If a free vote was enjoyed by individual Ministers, how could their individual views be reconciled with solidarity with their fellow Minister? Having tested the water at Council, both motions could have been withdrawn knowing that the electoral mathematics “did not add up”, but this would have made it harder for the individual Minister to do what they felt was best, it would in all cases delay decision making, although ultimately the unfettered democratic will of individual Ministers, as members of Tynwald would prevail. 11.7. The real danger of ‘the unfettered democratic will’ prevailing in a system largely comprising independent representatives from a small community is that difficult decisions are not made and/or the lowest common denominator solution is settled on. This was a constant criticism of Manx politics in the 1970s and early 1980s.

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12. Exceptions to the rules

12.1. The Isle of Man represents a rare example of collective responsibility where the exceptions to the rule are codified, and it expected within Council of Ministers that in purely parliamentary matters, there is a free vote27. There are however times within Council of Ministers when there are tensions between parliamentary and governmental issues, and these are debated in Council of Ministers. As the Tynwald and Keys Order papers are considered in Council of Ministers, there is perhaps a presumption of Council of Ministers forming a view on what could be quite trivial matters, instead of using the “inconsequential matters” exemption provided by the Government Code.

12.2. The fact that the Government Code, a published document, sets out the exemptions to the rules of collective responsibility significantly enhances the transparency and openness of its operation. Members of Tynwald and the public alike are able to see the circumstances under which it is acceptable for a Minister (or a Departmental Member) can depart from the collective view.

12.3. The inherent strains in the operation of collective responsibility in the UK have been accommodated openly in very rare circumstances where there has been the option of “agreement to differ”. These are taken on a case by case basis; most notably in the 1930s when in Britain the National Government allowed its Liberal members to oppose the introduction of protective tariffs; and again when Harold Wilson allowed Cabinet members to campaign either for or against the 1975 referendum on whether the UK should remain in the European Economic Community.

12.4. As can be seen, these are matters of significant import where the alternative would be to have a significant split or resignation from cabinet over a single issue. The “agreement to differ” must in itself be agreed by the Cabinet and endorsed by the Prime Minister. In such circumstances, the Prime Minister wrote to the members of the Cabinet setting down the rules, and time limit whereby their freedom of expression may be exercised. It should be noted that in both of the circumstances above, it became very difficult to transact the business of Government during such times, involving redirection of questions and alternative arrangements for representation.

13. Enforcement

13.1. Manx Ministers have varied in their pragmatism to the convention of collective responsibility. In some instances Members have requested permission to vote against their Department and this has been approved, whilst on other occasions the implication of public criticism has been sufficient to warrant being sacked.

13.2. Where matters have come to Council of Ministers via Treasury, collective responsibility has been required there.

13.3. Equally, matters involving Ministers and the Chief Minister have been subject to mixed judgments depending on a number of issues, of which there have been a number of examples in various Administrations.

27 For example, Representation of the People Bills, changes to standing orders, and time limited speeches.

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13.4. It is perhaps inescapable that the Chief Minister is the only ultimate arbiter of collective responsibility as part of the Government Code. However, in theory, this could leave the Chief Minister open to accusations of playing politics or being an unfair arbiter.

13.5. Collective responsibility in the UK is rigorously enforced. Exceptions to open dissent are extremely rare. Miles Walker commented on the issue of enforcement in 1989: “It may be comparatively easy, Your Excellency, for me, as Chairman of Executive Council or Chief Minister, to say to one of my colleagues, ‘I am sorry, if you cannot agree on this point you have to go’. I am then left with a very difficult dilemma of trying to find somebody else to take that place, somebody else who will be a better contributor in a general way, perhaps not on the specifics but in a general way, to Executive Council. So that, I think, is another concern that has to be taken into account when we try and compare Executive Council with the Cabinet in the United Kingdom.”28 This demonstrates that collective responsibilty in the Isle of Man has very real practical, as well as doctrinal constraints.

13.6. In the UK, the governance surrounding enforcement of collective responsibility, and other aspects of the Ministerial Code has evolved considerably in recent years.

13.7. In March 2006 the Prime Minister’s first independent advisor on Ministers’ interests was appointed, a role which was strengthened in 2008. The advisor, a non-statutory appointment by the Prime Minister, is responsible for advising Ministers on how to comply with the Code and, at the request of the Prime Minister, investigating alleged breaches of the Code.

13.8. For the UK Government, the Prime Minister is the ultimate judge of the standards of behaviour expected of a Minister and the appropriate consequences of a breach of those standards. Ministers remain in office only for as long as they retain the confidence of the Prime Minister.

13.9. As the Ministerial system evolved in the Isle of Man, and Ministerial appointments became the responsibility of the Chief Minister without the need for Tynwald approval (from 1990) the importance of retaining the confidence of the Chief Minister has increased. It therefore follows that the Chief Minister has a central role in enforcing collective responsibility and the Ministerial Code more generally.

14. More open and democratic?

The motion agreed by Tynwald did not question the importance of collective responsibility as a central principle of good government; it just sought to make its enforcement more open, transparent and democratic. Whilst the rationale for collective responsibility has been set out above, the motion implies that more could possibly be done to make its use more transparent.

28 Hansard, Tynwald Court, 22/2/1989 T1031-1032

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Appendix I - Extract from the Government Code 2011 Collective Responsibility

General Principles 1.26 Collective responsibility implies that the policy of individual Ministers must be consistent with the policy of the Council of Ministers as a whole. Once Council’s policy on any particular matter is decided, each Minister is expected to support it and share responsibility for it. If a Minister cannot agree with his colleagues on a matter of general policy or on a single major issue, he should consider whether he should remain a member of Council.

1.27 Collective responsibility has the following features:

(1) A Minister may speak against any proposal in the Council of Ministers, but he must subsequently either support the policy decided upon or resign. (2) Where the policy of a particular Minister is being challenged, it is the Council of Ministers as a whole which is being challenged. Thus, the defeat of a Minister on a major issue represents a defeat for Council. (3) Every Minister must be prepared to support all Council of Ministers’ decisions both inside and outside Tynwald, the House of Keys and Legislative Council. (4) Collective Responsibility does not apply to a Minister’s responsibility for his personal mistakes. (5) Any major shift of policy proposed by a Minister must be cleared by the Council of Ministers before it is announced.

Exceptions 1.28 There are circumstances, as follows, under which Ministers have freedom to speak publicly against policies and decisions of the Council of Ministers or without reference to Council:

(1) Matters of conscience: There will inevitably be issues where Ministers will be guided by a fundamental religious or moral belief [rather than political ideology]. Such issues are readily identifiable whether they arise in a Tynwald motion or in a Bill. Ministers will always have the right to a free vote on such issues. (2) A declared position: A Minister brings with him to the Council of Ministers a set of views and opinions uniquely his own. These may, in some cases, include a strongly held and publicly declared position on a particular subject. It would be unrealistic to expect such a Minister to change his position on that subject for the sake of Council’s solidarity. Equally, however, it would be unacceptable for that Minister to “crusade” in support of his declared position in the knowledge that the Council of Ministers does not share his view. (3) Constituency matters: Issues may arise where there is a strong and specific constituency interest which conflicts with a Council decision. In these circumstances, a Minister from that constituency must have the right to represent that interest if he so wishes. Where this is so, the Minister concerned must make his position clear to the Council of Ministers. Provided, as a courtesy, a Minister gives advance warning to any other Minister, he may ask a written question on a constituency matter provided the question is framed in an appropriate way.

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(4) Inconsequential matters: Collective responsibility applies to Council policies and decisions. Where small matters of detail arise, where there can be room for disagreement without those policies or decisions being called into question, Ministers will have the freedom to express themselves. Ordinarily such matters will not come before the Council of Ministers anyway. (5) Unresolved issues: Issues will be raised from time to time which the Council of Ministers has not considered or on which Council has not taken a decision. Until a Council position is established, Ministers will be free to express themselves. However, such issues are likely to emerge on the agenda for Tynwald or one of the Branches and an opportunity will arise for the matter to be discussed in Council before debate in public. Ministers should therefore, as a general rule, where possible, seek to refrain from comment until after Council has considered the matter.

1.29 A personal or political dislike of a Council of Ministers’ decision is not in itself a sufficient justification for an exemption from collective responsibility. In cases where a Minister feels personally or politically unhappy with a particular policy or Council decision, the proper forum for discussion of the matter is the Council of Ministers. If the Minister is unable to persuade Council to accept his thinking after full and frank discussion, he must accept the decision reached by Council. Any subsequent public dissent must be regarded as an unacceptable indulgence.

Conduct in Dissent 1.30 Where a Minister exercises his right to a free vote or to speak publicly against a policy or a decision of the Council of Ministers, in accordance with one of the recognised exceptions, it will be important for him to express himself towards other Ministers in a responsible way. Even in disagreement, courtesy and respect are due to a fellow Minister. A display of personal abuse, criticism or animosity would be unacceptable in such circumstances.

Chief Minister 1.31 Collective Responsibility applies to the Chief Minister in the same way as to other Ministers.

Note: The following are examples of the practical application of the doctrine of collective responsibility in an Isle of Man context:

(i) Tynwald/Keys Questions Except in the circumstances described below, it is unacceptable for Ministers to pose questions to other Ministers. There are adequate alternative opportunities for Ministers to obtain whatever information from each other that they require.

Exceptions (a) Supplementary questions where these are likely to be helpful to the Minister being questioned or to the Council of Ministers; and (b) Written questions, on a subject matter where there is a strong and specific constituency interest affecting the constituency.

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(ii) Motions before Tynwald The support of Ministers for the following Council of Ministers or Departmental business would be expected (except in the case of (c) below, where any of the exceptions at para 1.28 apply) :- (a) The Policy Debate; (b) The Budget; (c) Motions promoted by the Council of Ministers or by a Department including proposals for expending money and approving subordinate legislation.

(iii) Bills before the Branches The support of Ministers would be expected for Bills, whether or not promoted by a Department, the introduction of which has been authorised by the Council. However, support for amendments to a Bill where those amendments do not seriously undermine the purpose of the Bill, would be acceptable. 11

Access to and Retention of Council of Ministers’ Documents 1.32 Where there is a change of Chief Minister and/or Minister(s) there should be a general presumption in favour of making documents of the previous Council/Department available.

1.33 Notwithstanding paragraph 1.32, an outgoing Chief Minister/Minister may specify which documents should not be available to the incoming Chief Minister/Minister, without his or her express permission. Permission to release documents should not be unreasonably withheld.

1.34 A Chief Minister or Minister leaving the Council of Ministers or an Official leaving the service of the Council of Ministers should be requested to return all remaining Council of Ministers’ papers to the Chief Secretary for destruction.

1.35 Ministers should not receive papers, or take part in discussions, on matters where they might be regarded as having a personal interest (See also Paragraph 2.14.)

The following is an extract from the Code in respect of Members of Departments:-

Collective Responsibility

3.11 Unless they have been positively excluded from the process of formulating the policy, Members of a Department are collectively responsible with the Minister for departmental policy in the sense that they should support that policy in public. This collective responsibility for departmental policy extends to departmental policy as a whole, and not simply to those policy areas for which a Member has been given delegated responsibility to act.

3.12 There are circumstances, as follows, under which Member(s) have freedom to speak publicly against policies and decisions of the Department:

(1) Matters of Conscience (2) A Declared Position

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(3) Constituency Matters (4) Inconsequential Matters (5) Unresolved Issues A fuller discussion of collective responsibility is set out in Part 1, paragraphs 1.26 to 1.31.

3.13 A personal or political dislike of a Departmental decision is not in itself a sufficient justification for an exemption from collective responsibility.

Appendix II – Statement of priorities

NOMINATION OF ALLAN ROBERT BELL MHK AS CHIEF MINISTER. STATEMENT OF POLICY PRIORITIES. Since 2008 global events have changed our world and as these events continue to unfold and economic storm clouds gather they ensure that the next five years will be the most challenging period that we have faced for a generation, both for Tynwald and also the Island.

However we must not let ourselves become downhearted. In the early eighties we also faced very difficult economic times and by working together and developing long term strategies, both social and economic, ultimately we succeeded in developing one of the most successful economies in Europe.

I am proud that I was part of the team which developed that recovery strategy and with the benefit of my experience of that period, 27 years as a Member of the House of Keys, with a wide range of Government and Parliamentary responsibilities and especially latterly, as Minister for the Treasury and Economic Development over the last turbulent ten years, I now offer myself as a candidate for the position of Chief Minister. Without question our twin top priorities have to be the re-balancing of Government finances in the wake of the VAT changes and the stimulation of further economic growth and diversification to provide new revenue streams for Government and jobs for our people.

However, we must not allow our pursuit of these vital goals to blind us to the need to maintain our social cohesion and quality of life. The next Government must provide the leadership and openness needed to promote a fully inclusive, compassionate and, above all, fair society if we are to succeed. A society which is at ease with itself.

To deliver these ideals I would propose two initial reviews.

Firstly to endorse the principles of the long term strategy document, The Development of a Prosperous and Caring Society, which laid the foundation for our current success in 1987, to see what we can learn from that far sighted strategy and to build an updated range of options for the next 20 years. I believe that we should take advantage of our current difficulties to move beyond short term palliatives and, through working together, produce a long term vision of where we want the Island to be in the future.

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Secondly, I believe we need to revisit the Report on the Scope and Structure of Government. I would propose to reconstitute the original committee and charge them to produce an update on progress so far and suggestions for the future. Once completed, I believe we need a full Tynwald debate on the issue to identify a collective and acceptable way forward.

Central to any changes which may be identified in this report must also be a change to the culture of Government, without which any new proposals will fail. We cannot continue to deliver services and achieve the savings we need without challenging the long established processes and working practices across Government. To achieve these changes we need to engage staff at all levels, from Chief Executive to middle management and especially our front line staff, including the relevant Unions. In driving through change I believe in two principles. Firstly, a slash and burn approach to downsizing Government too quickly will be very damaging to both the economy and society; a more measured approach is called for, with a judicious use of our Reserves when necessary. Secondly, there can be no ring-fenced sacred cows in the review process. We must scrutinise every aspect of our operations.

To stimulate further economic activity we must build on the very effective and cooperative relationship we have with our business community. They know better than ourselves where the opportunities lie and Government must be prepared to support them in expanding existing business and also diversifying into new sectors for the future.

Our economy overall has not been in recession and is still growing, and this is recognised by our continuing AAA credit rating. To maintain that vibrancy we must have a stable taxation system and I would seek to maintain our 0/10% corporate tax structure. This has now been accepted by the international community and we must fight to protect it. The UK is in the process of establishing enterprise zones in deprived areas. We have to ensure that the whole of our Country becomes an enterprise zone, with appropriate incentives, cutting through red tape where necessary and providing the necessary infrastructure and incentives to attract new business. We also need a review of our planning system to ensure that it gives adequate consideration and priority to economic development.

Greater coordination across Government with regard to training and retraining has already begun. We must build on this to raise the skill levels in our workforce and also to help tackle the growing issue of youth unemployment. We must give hope and confidence to our young people that they have a future here.

In spite of the problems we have faced with our VAT Agreement, I do not believe that the time is right for abrogation. It is still broadly beneficial for the Island and any change at this time could seriously damage the economy. I do believe, though, that we need to consider and cost our future options, with the aim of improving our understanding of all aspects of the agreement in anticipation of any arbitrary actions by the UK government in the future.

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Our experiences with the UK over the last few years lead me to believe that we must reassess the value of our reciprocal agreements with that country. The UK is currently reviewing both its pension and benefit systems with an eye to future reform. Any changes will directly impact the Island.

I believe we need an in depth review of these issues, especially the benefit system, to investigate whether it would now be more appropriate for the Island to develop its own procedures to establish a new structure more suited to our own needs rather than follow a system which will be ideologically tailored for the needs of the UK. Additionally, the UK has suggested amalgamating its tax and national insurance payment procedures. If things stay as they are, the Isle of Man will have to follow suit if any changes are made. This may also not be in the best interests of the Island.

A major problem facing most developed countries is an ageing population. During the last five years the number of Isle of Man pensioners has increased by over 2,000. This rate will accelerate and we need to plan to deal with a higher dependency ratio and the consequent costs of medical and social care, especially nursing care in old age. I propose that methods of funding these costs be fully investigated and that a commission be established to review the situation, along with proposals to maintain the sustainability of the Manx state pension. Events of the last few years and the implications of my suggestions, including the protection of the economy, prove beyond doubt that we have to become a lot more proactive in dealing with our various international partners. I have extensive experience in promoting the Island in the wider world and with negotiating in hostile environments.

If I am elected Chief Minister, raising the Island’s profile would be one of my top priorities. However I recognise that there have been limited opportunities for other Members of

Tynwald to gain greater experience in this area. I would undertake to ensure that whenever possible other Members are encouraged to build their experience and confidence to help protect the Island’s reputation in the future.

Improved communications off Island will be vitally important in the future. However, so will internal communication, too. If the outgoing Government can be criticised for one thing it is that we have been very poor at keeping the public fully informed as to progress in many areas. I believe we need a complete rethink on how Government and Tynwald communicates with our people. We have to be more open and honest, especially when making what may well be difficult and painful decisions in the time ahead. Even where there may be disagreement, people are more likely to accept a decision if it is clearly explained beforehand.

To build that essential trust I would propose to introduce the Freedom of Information Bill, whilst accepting that there are areas where confidentiality has to be protected. However, it must also be recognised that it may come at a high cost if the Jersey example is accurate, and other areas of Government expenditure will be adversely affected.

Additionally, I would undertake to hold public meetings around the Island periodically to reach out more effectively to our people. At this stage I do not intend to go through all the possible issues facing us in the time ahead but I would comment on a few which I believe need to be addressed.

173 Functions of Tynwald – Tynwald Select Committee

The construction industry is a very important element of our economy and is struggling as a result of the economic slowdown and the reluctance of banks to lend. We should use this opportunity to utilise their spare capacity to address our housing problems, particularly the current shortage of starter homes, and progress the Dept of Social Care’s Housing Review with some urgency. Although we will have reduced revenues in the next few years we have to do our utmost to protect core services. I am concerned by what appears to be a growing problem of Health Service waiting lists. In spite of our various initiatives, waiting times are going beyond acceptable levels.

I still believe that we need a definitive review of the scope and structure of Local Government.

This is needed to improve efficiency and value for money at local levels and to free Members of Tynwald to be genuine national politicians, focusing more on the broader strategic issues. Extra powers, such as street cleaning and minor road repairs, could be devolved from central government. Once the new role of local government has been identified, a rate revaluation should take place to introduce a fairer system across the Island.

Like many members of the public, I have been dismayed at the amount of time spent in the last House navel gazing with respect to internal constitutional matters. In principle, I agree with direct elections for Legislative Council as long as we do not create political instability in the process. I would support a totally independent review to introduce new thinking into the debate, leaving Members more time to deal with more pressing issues. Energy costs have a massive impact on inflation, which is detrimental to both households and business alike. We should encourage the development of renewable energy and reduce our energy waste. There is a clear economic imperative to do this as every pound saved is a pound which can instead be spent in our economy.

These are but a few of the challenges the Island will be facing over the next five years. More than ever before, I believe Tynwald, collectively, has to give the leadership and vision to unite and inspire our people to successfully navigate these turbulent times.

If I am given the privilege of being elected Chief Minister I promise that I will do my utmost to promote a unified team, not only in the Council of Ministers, but right across Tynwald and beyond. This is not the time to be distracted by yesterday’s squabbles or overbearing egos. I do not have all the answers and I will make mistakes. I am only human.

I would hope that all Members who wish to contribute will be given the opportunity to do so and I would hope to also draw on the very extensive experience we have within our midst outside of Government.

I promise that I will be accessible to everyone and provide a listening and collegiate leadership wherever possible.

174 Functions of Tynwald – Tynwald Select Committee

Internationally, the world economy is in uncharted waters. There is no quick or easy answer to the challenges which face us. However, we start from a position of relative strength. We have to look to the future with confidence and self-belief, working together to defend our achievements, our rights and our independence. I offer you my experience to help deliver that belief.

Allan Bell MHK

175 Functions of Tynwald – Tynwald Select Committee

Appendix III - UK Collective Responsibility

Extract from the Ministerial Code29

2 MINISTERS AND THE GOVERNMENT

2.1 The principle of collective responsibility, save where it is explicitly set aside, requires that Ministers should be able to express their views frankly in the expectation that they can argue freely in private while maintaining a united front when decisions have been reached. This in turn requires that the privacy of opinions expressed in Cabinet and Ministerial Committees, including in correspondence, should be maintained.

2.2 The business of the Cabinet and Ministerial Committees consists in the main of:

a. questions which significantly engage the collective responsibility of the Government because they raise major issues of policy or because they are of critical importance to the public; b. questions on which there is an unresolved argument between departments.

2.3 The internal process through which a decision has been made, or the level of Committee by which it was taken should not be disclosed. Decisions reached by the Cabinet or Ministerial Committees are binding on all members of the Government. They are, however, normally announced and explained as the decision of the Minister concerned. On occasion, it may be desirable to emphasise the importance of a decision by stating specifically that it is the decision of Her Majesty’s Government. This, however, is the exception rather than the rule.

2.4 Matters wholly within the responsibility of a single Minister and which do not significantly engage collective responsibility need not be brought to the Cabinet or to a Ministerial Committee unless the Minister wishes to inform his colleagues or to have their advice. No definitive criteria can be given for issues which engage collective responsibility. The Cabinet Secretariats can advise where departments are unsure. When there is a difference between departments, it should not be referred to the Cabinet until other means of resolving it have been exhausted. It is the responsibility of the initiating department to ensure that proposals have been discussed with other interested departments and the outcome of these discussions should be reflected in the memorandum or letter submitted to Cabinet or a Cabinet Committee.

29 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61402/ministerial‐codemay‐ 2010.pdf

176

Lawrie Hooper MHK

177 178 Dear Honourable Members

In respect of this report you have stated that you are seeking evidence on a number of items, each of which I will deal with separately. The Committee is also asking for its remit to be expanded, and if this is approved by Tynwald there will be some additional points relevant to the 'MLC' reporting date of October that I will also comment on.

Items to be accepted in Principle

That MLCs should not vote on measures which are exclusively on taxation or appropriation, and that the Clerk of Tynwald formulate a definition for Standing Orders;

I agree with this recommendation. My interpretation would be that this would not entitle Members of Legislative Council to vote on the Budget nor on the approval of Capital Schemes and supplementary votes. In addition I would expect to be included in this any measures which are solely relating to the raising of government revenue (i.e. Motion or Orders to vary the water rate or vehicle duty)

That MLCs should not be Ministers, other than in exceptional circumstances.

I agree with this recommendation, except to say that I do not believe MLC's should ever be Ministers. 'Exceptional Circumstances' needs to be defined clearly in standing orders or legislation (as appropriate) and should only relate to a genuine emergency, i.e. circumstances where there are simply no Members of the House of Keys available to fill the role.

That the Bishop should remain a Member of the Legislative Council;

I have no comments on this recommendation.

That Tynwald should consider whether: a. the Bishop should be included in the quorum of the Legislative Council; and b. he should be allowed to abstain.

I do not believe the Bishop should be entitled to a vote - which per Tynwald Standing Order 11.4 would remove him from the Quorum in Tynwald. In Council I believe the Bishop should serve a non-political role and so should not count towards the Quorum of Council.

I have no comments on the principle of abstention.

179 Items to be considered in principle and in detail, where Necessary

Whether the vote be open for the election of the Members of the Legislative Council (this is already the case).

This is already the case and it was unanimously supported by the House of Keys on the 4th April 2017. There is absolutely no reason for the committee to reconsider this position.

The circumstances (if any) where it would be appropriate to appoint Members of Legislative Council to membership of a Department.

This is an area of some concern for me. I firmly believe that only Publicly Elected Members should have any role to play in formulating government policy. The role of MLC's is to provide oversight and to act as an independent balance to the House of Keys and I do not believe this can be performed effectively whilst they are also responsible for developing policy from within departments.

In an ideal situation MLC's would not be entitled to Departmental Membership, in the same way (and for exactly the same reasons) it is proposed that they are not entitled to be Ministers. A Minister can at any point choose to delegate responsibility to any Departmental Member, which means in reality whilst they are Departmental Members MLC's can act with some (or in some cases all) of the powers of a Minister.

However, I do appreciate the view that MLC's can add value to a department simply by virtue of bringing a different perspective to the table. To this end I would not be opposed to MLC's being allowed to remain in Departments in some form of non-executive capacity. (In a similar way to how an Audit Committee might work in a private company). In this case, they should not be allowed delegated authority and should instead be primarily responsible for:

A) Bringing departmental legislation through the legislative council; and B) Supporting Departmental Members and the Minister in the delivery of their functions, including providing guidance and oversight (I don't mean here that they should act as a sort of Shadow Minister, only that they should be able to act as a 'critical friend' to the department while it is formulating its policies). They should attend department meetings but not have a vote, instead acting in an advisory capacity.

Whether or not the committee fully agrees with my viewpoint I believe it is essential that the status quo is not maintained. There is a great deal of feeling, both inside and outside Tynwald, that the role of MLC's needs to change to better reflect a 21st Century Parliament and I would urge the Committee to give this due regard in their considerations.

180 Whether the pay and enhancements for Members of Legislative Council be reviewed in light of their amended responsibilities.

I believe that all Members pay should be revisited - under no circumstances should the overall budget increase, but there is merit in looking again at how this budget is allocated.

However, specifically in respect of MLC's I do agree the remuneration should be reviewed in light of any changes to their responsibilities, although I would suggest whichever model is chosen (fixed salary / attendance based etc) that the level of remuneration is considered by an independent body and not by politicians.

Additional Remit requested

Whether Members of Legislative Council should be able to vote on the appointment of the Chief Minister or on a vote of confidence in either the Chief Minister or the Council of Ministers;

In June, 22 Members of the House of Keys and 3 Members of Council voted in favour of approving this and directing the Committee to implement it – not simply referring it to the committee to consider.

As such there is not much to consider, it is clearly the view of the majority of Tynwald (25 Members) that MLC's should not vote on the appointment of the Chief Minister nor on a vote of confidence in them or the Council of Ministers. I would expect the Committee to bear this in mind and act accordingly.

Whether the Lord Bishop should retain his vote;

In June, 15 Members of the House of Keys and 2 Members of Council voted in favour of approving this and directing the Committee to implement it – not simply referring it to the committee to consider.

As such there is not much to consider, it is clearly the view of the majority of Tynwald (17 Members) that the Bishop should not retain his vote. I would expect the Committee to bear this in mind and act accordingly.

Whether a sitting Member of the House of Keys should be eligible to be nominated as a Member of Legislative Council;

In June, 16 Members of the House of Keys and 1 Member of Council voted in favour of approving this and directing the Committee to implement it – not simply referring it to the committee to consider.

As such there is not much to consider, it is clearly the view of the majority of Tynwald (17 Members) that sitting MHK's should not be eligible for nomination to Legislative Council. I would expect the Committee to bear this in mind and act accordingly.

181

I would note that my understanding of "sitting MHK' is one who is currently in post, and so if an MHK resigned his or her post then they would become eligible for nomination to Legislative Council.

I hope these thoughts prove useful to the Committee in their deliberations

Kind regards

Lawrie Hooper BSC (Hons) MRES ACA MHK for Ramsey Legislative Buildings Finch Road Douglas Isle of Man IM1 3PW British Isles Office Tel | (01624) 651525 Office Mobile | (07624) 473478 [email protected] | www.tynwald.org.im |

182

Jane Poole-Wilson MLC

183 184 Response to the Select Committee on the Functioning of Tynwald - Jane Poole-Wilson

Friday 21 July 2017

In response to the Interim Report of July of the above Committee, I have set out below comments relating to those areas the Committee will report on in October including the additional items approved by Tynwald on 18 July 2017.

October – Matters which have received Tynwald approval in principle

Recommendation 2 (as amended) – Role of the Legislative Council

a. That MLCs should not vote on measures which are exclusively on taxation or appropriation and that the Clerk of Tynwald formulate a definition for Standing Orders - agree b. That MLCs should not be Ministers except in exceptional circumstances. - agree

Recommendation 3 (as amended) – The Bishop

a. That the Bishop should remain an MLC – agree and see further comments below in relation to the role of the Bishop b. That Tynwald consider whether the Bishop should be included in the quorum of the Legislative Council and whether he should be allowed to abstain – agree and see further below

October – Matters referred to the Committee for further consideration

Recommendation 1 – Election of the Members of the Legislative Council (MLCs)

a. That the vote be open

Agree. Given this change has been adopted into the Standing Orders of the House of Keys with unanimous Keys support there appears to be very little basis to change this. I note that the vote will be public unless the House of Keys by majority votes to change this. Given the very strong sentiments expressed by many of the Keys in debate on the importance of the vote being open, the Committee may wish to consider whether a change to the open ballot would need more than a simple majority voting in favour.

b. Whether a sitting member of the House of Keys should be eligible to be appointed as a Member of the Legislative Council [included following the Tynwald vote of 18 July]

Former MHKs have experience which is relevant to the role of MLC - thus I feel they are an important constituent of the Legislative Council. However I think it also important to have a balance between former MHKs and "outsiders" with differing life, work and perhaps charitable/ voluntary experience. Whilst I do not advocate formally stipulating the balance - I feel a 50% balance would be a good aim.

185 So former MHKs should certainly be eligible to be appointed to the Legislative Council. Whether that should include sitting MHKs is a trickier question. On the one hand a sitting MHK has current experience of Parliament and possibly Government, should be well versed not only in current issues but have good working knowledge of key policy/legislative areas, and can provide a degree of continuity between the Keys and Legislative Council. The objection is that highlighted in some of the evidence given to Lord Lisvane; namely the perception of Leg Co being a cosy or "old boys' club" being "open to the charge of cronyism and worse", and "a perception of self- perpetuation". Whilst this is I think mostly about perception it is a perception that can be to the detriment of Tynwald's reputation.

Are there ways to mitigate this problem short of a ban on sitting MHKs being eligible? Possibly it would help to have a "job description" for MLCs. If through this review the role of MLCs is more formally defined, and ultimately MLC pay linked to this, that might go some way to improving public understanding and reduce the risk of negative perceptions of the Legislative Council as a cosy retirement club. It is also to a large extent within the control of the House of Keys to influence perceptions. Under the newly adopted election procedure at least four MHKs would need to support the nomination of a sitting MHK and with the open vote each MHK is more easily held to account for how they vote. So MHKs would perhaps want to be able to justify nominating and/or voting for a sitting MHK given their support / vote would be a matter of public record.

Recommendation 2 (as amended) – Role of the Legislative Council

a. The circumstances (if any) where it would be appropriate to appoint Members of the Legislative Council to membership of a Department

This raises questions of principle and practicality and ideally would be considered alongside other aspects of this Review – namely the overall issue of Departmental membership (Recommendation 5) and the approach to Scrutiny (Recommendation 6) and Legislation (Recommendation 7).

The start point is clarity around the purpose and role of MLCs. Should MLCs have a non-executive role, being required to scrutinise both legislation and policy direction and implementation without any actual or perceived conflict arising including as a result of membership of a Department?

If yes, to what extent does individual MLC political membership of Departments actually compromise the ability of the Legislative Council to conduct its scrutiny and constructive challenge role? Whilst it would seem inevitable that an individual MLC could not so easily scrutinise/challenge the legislation and policy of the Department of which s/he is a member, particularly given that membership would mean that MLC was expected to champion legislation and policy from that particular Department, to what extent does this cause a problem in practice? If an MLC is a member of, for example, Treasury, but no other MLC s are, then the fact that the remaining MLCs are able to scrutinise and challenge the Treasury’s legislation and policy suggests independent scrutiny will not be compromised.

A second issue if MLCs are not to have any Departmental role is how legislation is best steered by MLCs through the upper chamber. In the absence of Departmental membership there would need to be a mechanism for MLCs to be nominated to sponsor a Department’s Bill. Possibly this could be achieved by having MLC s as non-executive members of Departments with their role limited to

186 sponsoring and steering legislation through Leg Co. However, even as a non-executive the MLC would need to understand and master not only the content of a Bill but the underlying policy and rationale behind it in order to be able properly to explain it and answer questions. Comprehensive/ regular briefing could go a long way to support this. In practice, however, the reality of the sponsorship role probably means there will be a closer relationship with the relevant Department and the MLC will effectively take on the Departmental view/stance, such that the MLC could not easily carry out or be seen to carry out independent scrutiny of that Department.

The question of how best to equip MLCs to steer legislation through Leg Co is linked to the wider question of possible changes to the process of making legislation (Recommendation 7). If for example it is decided to introduce a draft Bill procedure particularly for larger or more complex Bills, MLCs could have an important role sitting on the draft Bill Committee. Through this the MLC would get a detailed understanding of the legislation and its impact (not only from the relevant Department but through feedback from public consultation and expert evidence where appropriate) as well as being involved in the initial scrutiny of the Bill. The relevant MLC would then likely be well equipped to steer the Bill through Leg Co in due course.

A potential problem that is not just about MLCs in Departments but concerns the overall number of Departmental roles was highlighted by some of the evidence given to Lord Lisvane - that of the perception that in some instances Departmental roles were less about substantive jobs that needed to be done and more about "just dishing out jobs and money". Whilst this is one view point, it gives rise to another negative perception that has the potential to damage Tynwald's reputation. Clearly this issue may be addressed by recommendations on potential limits on the number of Departmental roles for each Department. If there is a future reduction in the number of Departmental roles and MHKs as the elected representatives are the preferred candidates for those roles this would have the potential advantage of allowing MLCs to be and be seen to be independent of Government. There would remain the practical issue of how best to have MLCs be in a strong position to sponsor legislation but reform to the legislative process could I feel go some considerable way to addressing this.

One final thought on this issue as someone new to Tynwald and the MLC role. It seems clear from talking to those who have performed the role that they have found a lot of value in being in a Department. I can see it is an effective way to get to grips with the issues and related policy legislation. However, not having had the benefit of being in a Department, I have found the Tynwald Member briefings as well as the willingness of Ministers, Departmental Members, and officers to meet and provide 1:1 briefings invaluable as a means of not only learning more about policies and associated legislation but also of building constructive professional relationships that allow for ongoing dialogue, questioning and constructive challenge.

187 b. Whether Members of the Legislative Council should be able to vote on the appointment of the Chief Minister or on a vote of confidence in either the Chief Minster or the Council of Ministers [included following the Tynwald vote of 18 July]

Without the mandate of being directly elected I find it difficult to justify MLCs being able to vote on the appointment of the Chief Minister or on a vote of confidence in either the Chief Minister or the Council of Ministers. Professor Peter Edge highlighted the amount of power presently wielded by the Legislative Council in reference to the recent appointment of the Chief Minister. "Recently, for instance, the appointment of the Chief Minister…..depended upon the vote of the Legislative Council after the House of Keys tied.” http://www.lawandreligionuk.com/2017/06/29/tynwald-and-the-bishop-of-sodor-man/

So I support MLCs not having a vote on the appointment of the Chief Minister or on a vote of confidence in either the Chief Minister or the Council of Ministers.

The Chief Minister has said he feels it important to have Legislative Council as well as House of Keys support. I wonder whether this can be achieved through the vote on the Programme for Government. Tynwald approval of the Programme upholds support for the Chief Minister, Council of Ministers and their Programme for Government. As critical friends of Government, MLCs can and should then conduct scrutiny bearing in mind the scope and content of the Programme.

Recommendation 3 (as amended) – The Bishop

a. Whether the Bishop should retain his vote [included following the Tynwald vote of 18 July]

Tynwald has shown its support for the Bishop remaining a Member of the Legislative Council. While I am strongly supportive of this I do not believe the Bishop should retain the vote. I say this as a member of the Church of England and as someone who values hearing the Bishop’s voice in the Legislative Council and in Tynwald.

Tynwald’s support for the Bishop continuing to have a seat is I think based on the widely shared view that there is much of value that the Bishop contributes to debate in both the Legislative Council and Tynwald. A number of MHKs as well as MLCs have spoken about the benefits of having someone with the experience and perspective of past Bishops pointing out that the Bishop has an independent, outsider’s viewpoint and can represent the views of Christians and other faith groups. This enables the Bishop to articulate perspectives that may not otherwise be voiced and perhaps also to promote reflection and consideration.

The value is therefore in the Bishop’s ability to give voice to a different view, encourage reflection and understanding and to perhaps persuade and influence the perspectives of others. For this the Bishop should retain his seat, but he does not need to retain his vote.

There is also the fact that the Bishop, unlike the majority of the Legislative Council, has a seat by virtue of his office rather than by way of election by the Keys. Although not directly comparable, there are some similarities between the position of the Bishop and the Attorney General. Both have a seat as a result of their office and retain that seat for as long as they hold the relevant office. Both are no doubt valued, respected and listened to because of their singular position. In contrast the

188 other Members of the Legislative Council are decided upon by the Keys as elected representatives of the people, hold their seat for a defined period, must demonstrate to MHKs their value and contribution in order to be returned for any further period and can be removed in certain circumstances. Their mandate is determined by the House of Keys

Tony Benn’s five essential questions of democracy (below) are pertinent:

1. what power have you got?

2. where did you get it from?

3. in whose interests do you use it?

4. to whom are you accountable?

5. how do we get rid of you?

It is in answering these questions that the potential tension between power and accountability becomes most stark. The tension is well illustrated by the debates and votes between 1989 and 1991 in relation to the legalisation clauses of the Sexual Offences Bill to amend the law of the Isle of Man to legalise homosexuality1 . Bishop Jones in his maiden speech and in a subsequent vote in Council (May 1991) supported legalisation. He argued that despite the view of many Christians including himself that same-sex activity was unlawful….it was counterproductive to treat all sin as crime: driving activity underground would not cure it. However, following a general election and a subsequent Keys majority in favour of legalisation the Bishop in the Council stated that “A cross- section of Christians of all denominations has reminded me that in our deliberations here the Bishop represents as wide a range of Christian opinion as possible. I would neglect my duty if I did not draw attention to the deep feeling from the majority of Christians that this change is unwelcome”. He subsequently voted against the will of the Keys. I have no difficulty with Bishop Jones drawing attention to the feeling of a majority of Christians as any debate should take account of the differing views on a given issue. His vote however not only reversed his previous position but went against the will of the Keys. Considering the relative power of the Bishop’s vote in the Legislative Council and Tynwald (see below) and the democratic challenge posed by the above five questions, not least the final question, I consider that the Bishop retaining the vote is not justifiable.

This is particularly so in light of the fact that the Bishop’s vote in Tynwald is of greater significance than the votes of the Lords Spiritual in the House of Lords - the Lords Spiritual being capped in number at 26 compared to a current total membership of the Lords of 804. As Professor Peter Edge has pointed out:

“ The Lord Bishop is, in the Manx context, more powerful than the Lords Spiritual in the UK. Not only is the Lord Bishop a much greater proportion of the second chamber, but the Manx constitution gives more power to the [Legislative] Council than the UK constitution gives to the Lords. Recently, for instance, the appointment of the Chief Minister…..depended upon the vote of the Legislative Council after the House of Keys tied.” http://www.lawandreligionuk.com/2017/06/29/tynwald-and- the-bishop-of-sodor-man/

1 See further pages 40-41 Religious representation in a democratic legislature. A case study of the Lord Bishop of Sodor and Man in Tynwald by Professor Peter Edge and Dr Augur Pearce

189 There are also a couple of practical realities highlighted by the most recent Bishop of Sodor and Man, Lord Robert Paterson, in his evidence to Lord Lisvane: namely that the demands of his wider Church duties meant there was a case for not including him in the quorum of the Legislative Council and that he was required to vote on matters “of which he has no opinion, no axe to grind whatsoever”. Therefore, uniquely, the Bishop should be allowed to abstain (paragraphs 44 and 45, Review of the Functioning of Tynwald, Report by Lord Robert Lisvane).

These practicalities also point towards the Bishop in future having a seat (without being included in the quorum for the Legislative Council), and not a vote. The Bishop may then, when able to attend, contribute in full to debates in both the Council and Tynwald without the obligation to vote. I have suggested above that the real value for Tynwald is the Bishop’s voice in debate. A study2 has shown, “a change to the voting status would make much less difference to Tynwald than the removal of the Bishop from Tynwald” http://www.lawandreligionuk.com/2017/06/29/tynwald-and- the-bishop-of-sodor-man/

Several Members of Tynwald have stated that if the Bishop does not retain the vote, the Church has indicated that the Isle of Man will lose its Bishopric. Some have suggested this is not a threat, just a statement of reality. I hope it is not a threat. If it is a potential reality, and comes to pass, then I think it would be a missed opportunity for the Church to have its voice heard and retain some influence in parliament in the Isle of Man. It would be a decision ultimately for the Church. However, I would argue that the possibility of the Church ending the See is not ground enough to justify the Bishop retaining the vote when there are strong arguments of both principle and practice that support the opposite outcome.

The other concern that has been voiced is that the possibility of losing the Bishopric represents a threat to the nationhood and status of our Island. The Bishopric is unquestionably a part of our Island history. But late eighteenth century events following Revestment suggest that the issue of whether the Bishop and other ecclesiastics were invited to the Council was arguably more to do with the Crown’s efforts to encourage religious conformity in the Isle of Man than acknowledging and supporting the Isle of Man’s independence.3 The same study highlights the case that has been made on different occasions in the last third of the twentieth century for the Bishop to retain his seat but not his vote.

In summary, I am strongly supportive of the Bishop retaining a seat and a voice. Retention of the vote is much harder to justify. And retaining the vote purely to support continuation of the See is to my mind a case of the tail wagging the dog. Either there is a strong Parliamentary justification for the Bishop retaining the vote or there is not. Our ability to make that decision is a strong statement of nationhood. If Tynwald decided the Bishop should retain his seat but not his vote I hope the Church of England would choose to retain the Diocese of Sodor and Man and its voice of influence in Tynwald. However, that is a decision for the Church and not one which should sway the outcome of the recommendation on this issue.

Recommendation 5 (as amended) – Departmental Members

2 Religious representation in a democratic legislature. A case study of the Lord Bishop of Sodor and Man in Tynwald by Professor Peter Edge and Dr Augur Pearce 3 see pages 22- 24 Religious Representation in a democratic legislature. A case study of the Lord Bishop of Sodor and Man in Tynwald by Professor Peter Edge and Dr Augur Pearce.

190 a. That the pay and enhancements for Members of the Legislative Council be reviewed in light of their amended responsibilities

This is a “no brainer”. The Committee has agreed to conduct this review by October so potential candidates for the elections to the Legislative Council in 2018 have clarity around role and associated pay. The challenge is that any review needs to follow finalisation of MLCs’ role and amended responsibilities. And some aspects of MLCs’ responsibilities going forward are linked to the Committee’s recommendations on the future of scrutiny and legislation. There is also the potential for a link with the Committee’s recommendations on overall Departmental membership.

I support clarity about the MLC role and related pay and believe we should progress this as much as possible by October. To assist, the Committee should if possible make recommendations on:

• departmental membership for MLCs - the circumstances in which this may be possible or any alternative mechanism to facilitate MLC sponsorship of legislation through the upper chamber; • the role of MLCs - this should include in addition to the existing Legislative Council role scrutinising legislation and Tynwald role, any new role which is non-departmental but which is designed to enable an MLC to sponsor legislation, as well as any change to the scrutiny role and potential role in any new draft Bill procedure. One further question is how best to reflect any work MLCs do in relation to constituency issues. Although the constituency work would not be expected to be on a par or even close to that of MHKs, there is clearly some constituency work carried out by MMLCs and that should be taken account of.

Once there is clarity around the MLC role pay can be reviewed. A further complicating factor was the vote of Tynwald in favour of a review of all Members’ pay based on the following motion

“that Tynwald notes the recommendation in the Report by Lord Lisvane that an independent review of all Members’ pay and allowances be undertaken; and refers this recommendation to the Select Committee on the functioning of Tynwald to report with recommendations on the terms of reference of such a review”.

Some Members supported such a review on the basis that the overall cost of Tynwald Members’ pay and allowances should not increase. I agree. At a time when Government is seeking to make substantial savings to support sustainable public finances it cannot be justifiable to seek to increase the overall pay and rations budget for Tynwald Members.

To help with directing the current budget appropriately my suggestions are;

• clarity on the core Parliamentary role of MHKs and MLCs with a core level of pay aligned to this - this should be standard reflecting the expectation that all Members of Tynwald conduct properly their legislative scrutiny function in their respective branch as well as their Tynwald scrutiny role, as well as an expectation that Members will conduct work as members of Select Committees ;

191 • recognition of constituency representation and associated workload - this should result in an enhancement for MHKs with possibly a lower level allowance for MLCs to acknowledge the typically lower level of constituency work; • a review of the level of enhancement payable to Ministers and to the Speaker and President of Tynwald; • clarity on the number and scope of Department roles in each department and who is eligible, and the associated pay rate. Should there be a single rate for all department roles, or are some roles more substantial than others? So an MHK might take on either one substantial Departmental role or two lesser roles in the same department or two different departments. Setting of rates here should also take account of equal pay requirements; • if MLCs are not to have Departmental roles, any enhancement appropriate to a role sponsoring legislation through the Upper Chamber; • review of the enhancement rate appropriate to reflect the role of Chair of a Statutory Board; • what enhancement rate might be appropriate for the role of Chair of either a Scrutiny Committee or, if the process is introduced, a draft Bill Committee. There should be appropriate enhancements for the members of those Committees although at a reduced level when compared to the Chair.

192

Bill Shimmins MHK

193 194 195 196 197 198

David Anderson MLC

199 200 From: Anderson [mailto:[email protected]] Sent: 01 August 2017 09:02 To: Roger Phillips; [email protected]; [email protected] Subject: Re: Work of an MLC

Dear Roger I am replying to your request regarding the role of the Legislative Council members and the amount of time spent on different aspects of their role. I think it is accurate to say this varies from member to member depending on the different roles given in membership of Departments and as members of standing committees and select committees. For myself although I am a member of a Department I am not on one of the Scrutiny Committees and am no longer on two of the busier committees I was on in the last administration.The Overseas Development Committee in particular was at the time quite a regular and busy committee. Some of my Council colleagues are on both a Government Department and Scrutiny Committee and some are members of more standing committees. In conclusion I would say that the role for me personally is less onerous but it as not the same for every member. I am aware the Clerk to Council is preparing a brief to the Committee on the role. I hope this is helpful to the Committee in meantime. Regards David

201 202

David Cretney MLC

203 204 -----Original Message----- From: Cretney, David (MLC) [mailto:[email protected]] Sent: 01 August 2017 15:50 To: Roger Phillips Subject: My role as an MLC.

Dear Roger,

I was first elected to the House of Keys in 1985 and Council in 2015. So I have had the honour to be a Member of Tynwald for 32 years.

My workload as an MHK was far more than my present role. It was divided between my Constituency, Parliamentary, Department and ultimately between 1996 and 2014 Ministerial responsibilities.

As a Minister my workload required my attention often more than 70 hours a Week, in particular as Tourism Minister I did not take a Summer break for 10 Years as I felt it was my duty to support as many tourism events, present prizes,and to be the face of the Isle of Man as well as I could to those who had chosen to join us.

I had a very busy Constituency with many and varied issues to act upon and support when needed and did so to the best of my ability.

My constituents were very loyal over 7 elections allowing me to get the greatest number of votes in any Douglas constituency over 25 years. I am still contacted by a number of them when my support is required and will not let them down whilst pointing out who their current MHKs are.

Parliamentary work is vitally important but there were occasions when I was required to prioritise Department and other matters of particular interest.

I have been a Member of DEFA since 2015. The Minister has delegated responsibility in a number of areas to me but I believe the Department could manage without 4 members. I attend Department meetings once a Month and my Division the same, although their are often issues I need to address or attend in the interim.

I am currently ( since 2017) Chair of the IOM War memorials committee. Which is a two Monthly meeting.

Since 2010 I have been a member of the Tynwald management committee and since 2011 a member of the Tynwald standards and members interests committee, I also serve ( since 2010) on the Tynwald members emoluments committee. None of these are onerous or time consuming.

Since 2015 I have been a member of the Public Accounts committee of Tynwald and Chair of the Social

205 Affairs Policy review committee. I find the latter role in particular very interesting, varied and vitally important with a considerable number of scrutiny objectives currently being pursued. I believe those members whose role is one of scrutiny should not be treated any differently than those whose role is a Department one from a financial perspective and they currently are.

I have since the 2016 General Election served on 2 Select committees, one as Chairman ( Review of the 2016 Election) and one currently ( Functioning of Tynwald ) as a member. I try to attend as many Government presentations as possible and now have more time for Tynwald, Legislative Council and Committee preparation.

I believe my workload is now about half it was at my busiest but believe if Legislative Council is to remain it should be as diverse and representative as possible so membership should not be on the basis of " retiring into a part time job" because a member can afford it.I remember when first elected the House of Keys was often principally comprised of retired people who could afford to be members but we have surely moved on from that.

I trust this overview is helpful.

Kind regards,

David.

David Cretney MLC Member of the Legislative Council ( A branch of Tynwald ... The Worlds longest continuous Parliament ) Chairman of the Manx Labour Party Mob: 07624 453011 Tel: 01624 626765

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Geoff Corkish MLC

207 208 From: Corkish, Geoff (MLC) [mailto:[email protected]] Sent: 01 August 2017 15:48 To: Roger Phillips Subject: The Role and Functions of Legislative Council Members

FAO:

Roger Phillips Select Committee Secretary Role and Functions of Legislative Council Members

Dear Mr Phillips

I write as a Member of Legislative Council at the request of the Select Committee as above to detail my roles and responsibilities within Tynwald. As a Member of Tynwald I occupy and fulfil the following appointments;

Political Member – Department of Education and Children

Monthly meetings Ad Hoc meetings Regular Correspondence School visits, exhibitions, concerts, school prize giving’s/presentations and:

Chairman Isle of Man Arts Council

Monthly meetings Ad Hoc meetings and Sub committees Funding meetings Concerts and many event attendances Regular correspondence

Culture Vannin – Vice Chairman

Quarterly meetings Ad Hoc meetings

209 Sub Committee meetings Event attendance Concert attendance Regular Correspondence

Office of Fair Trading – Vice Chairman

Monthly meetings Regular correspondence Ad Hoc Meetings

Tynwald Advisory Council on Disabilities – Chairman

Monthly meetings Ad Hoc meetings/correspondence with various related agencies Two Annual meetings with related agencies

Committee Membership

Standing Orders Committee of Tynwald Standing Orders Committee of Legislative Council Ecclesiastical Committee of Tynwald Tynwald Honours Committee CPA Executive Committee Age Well Partnership Committee Project 2018 – Tynwald special year committee

I may point out that many of the roles I occupy entail a great deal of ‘out of hours’ attendance and commitment.

Legislative Council sits weekly and monthly in Tynwald Court. I do not propose to detail the political and scrutiny role of a Legislative Council member which will be well known to the Committee members.

The amount of time given to each role and responsibility by me is hard to quantify save to say that I attend the office/department/committee daily. We will all adhere to a work ethic and responsibility to Tynwald, however I am well aware that with prudent time management many Members of both branches have been able to continue with outside work commitments.

In closing my submission as requested I feel that it is important to stress my view that Tynwald is a shining beacon to other jurisdictions around the world benefitting as it does from a diversity of membership and in particular, from the makeup and independence of its Legislative Council. I would also stress that this is not a complacent view but one that is in defence of a responsible and stable parliament whilst acknowledging that a healthy review searching for beneficial outcomes is welcomed.

I wish the Select Committee membership well in their deliberations.

Geoff Corkish MBE MLC

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Bill Henderson MLC

211 212 From: Bill Henderson [mailto:[email protected]] Sent: 02 August 2017 11:52 To: Roger Phillips; Steve Rodan; Tim Crookall; 'Juan Turner'; Geoff Corkish; 'Quinn, John'; Jane Poole- Wilson; Michael Coleman; David Anderson Subject: Select Committee on the Functions of Tynwald - Evidence on the Role and Functions of an MLC

Dear Mr. Phillips,

Please find attached a document I have prepared on behalf of the Legislative Council – I had hoped that all Members would have been able to review this and agree it to be sent to the Committee as a joint response, which I have been discussing with Members. However, due to the tight time constraints, some Members being on leave, or just returning from leave it has not been possible to have a full agreement as yet. However all Members have been circulated with a draft, and have had the opportunity to comment. Further, some Members are in agreement that a joint response should be sent to the committee. Therefore I have taken the liberty due to the time restraints, and the fact the Committee are meeting this morning of furnishing this document to the Committee, which I will circulate to all Legco Members.

Also, I believe that the contents are significant and matters that the Committee need to take carful note of during their deliberations. From a personal point of view, I would be happy to meet and discuss any aspect or other issues with the Committee.

I would add that this does not preclude individual Members of the Legislative Council to make their own personal submissions in addition.

One last proviso I would like to add is that this submission is in note format, and has not had the benefit of a ‘full editorial review’ due to the tight time constraints being applied and commitments given to the same in Tynwald. For this I apologise to the Committee, but do hope they can bear with the document in that regard.

213 Yours sincerely,

R.W. Henderson, MLC

Bill Henderson, MLC, Dip.Mgt., MCIM, RMN (Ret)

Member of the Legislative Council and Tynwald – the Independent Parliament of the Isle of Man

Tynwald Members Offices The Clerk of Tynwalds Office Legislative Buildings Douglas Isle of Man IM1 3PW

01624 685642

214 The Role and Functions of Legislative Council Members – Response to the Committee on the Functions of Tynwald, August, 2017.

All Legislative Council Members received the below from the Clerk to the Committee –

Members of Legislative Council

The Committee on the Functioning of Tynwald agreed that at its next meeting (on Wednesday 2nd August) it would discuss the role of an MLC and that the Clerk should contact serving MLCs to ask them about their current role and what proportion of time they spent in each function.

The Committee will be considering remuneration and other issues such as the proposed scrutiny functions of MLCs.

It would be helpful if Members of Legislative Council could send me by email a short note of the amount of time they spend on their various public duties, allocating proportions to Departmental matters, Scrutiny Committees, etc.

I would be grateful if the emails could be sent to me by Tuesday next week, for circulation to the Committee.

Roger

In response to this the elected Members of the Legislative Council wish to place the following information before the Committee in connection to the above request.

Role and Functions of Members of the Legislative Council and individual Members. a. The Legislative Council has been and is an essential corner-stone of Tynwald, a component of its composition, and for centuries being part of the very fabric of our parliament, which in itself is steeped in history and tradition. Legislative Council is the second house to our tri-cameral parliamentary structure and indeed a branch of Tynwald. A structure as Lisvane1 points out: ‘which is in good shape.’ Legislative Council delivers a range of critical factors to the operation and benefit of our parliamentary procedures within its own chamber, and when it sits as a branch of Tynwald with the House of Keys in Tynwald. This is by way of Providing highly desirable and important elements to our democratic process:

a. A sober, second look at legislation approved by the House of Keys – the first house – by way of scrutiny, examination and assessment b. Revision of legislation – in depth analysis, line by line, of every Bill passed in the first house

215 c. A check and balance to the power of executive government – in Tynwald, and in the Legislative Council Chamber – where government Bills are scrutinised, debated, amended, can be sent to committee, can be checked or paused, or indeed voted against. Conferences can also be called with the first house to discuss any matter pertaining to a bill d. Revision and scrutiny of policies, motions – including financial motions, secondary legislation and other matters brought to Tynwald by government – the Council of Ministers – Legislative Council vote on these matters, and normally have to be in agreement with the first house for any government business to be successful. In the event that a motion is passed in the Keys and defeated in the Council, it can be brought back at a subsequent sitting for a combined vote. e. Provision whereby progress of a Bill may be suspended to allow representations from the public wishing to give public evidence at the ‘bar’ of Legislative Council, for which there is a special procedure – giving time for evidence, a ‘second chance,’ a ‘sober second look’, recognising minorities views and concerns and indeed that of industry as has been the case in the recent past with the Beneficial Ownership Bill f. Bills can commence in Legislative Council which can prove of great benefit such as we saw for example with the Interpretation Bill 2015, the Legislation Bill 2015 and the Equality Bill 2016 g. ‘Out of chamber’ examination and analysis of Legislation, government – policies, motions, secondary legislation and other pertinent government matters h. Members can commence their own ‘Private Member’ legislation

These factors, especially the first four, being the raison d'être for a second house in providing this invaluable, and highly desirable democratic element to our political system. Indeed, as other countries such as the United Kingdom, United States, France, Australia and Canada have long recognised. b. The role and functions of MLC’s is wide and varied in the main consisting of, but not exclusively the following duties –

a. Working in the Legislative Council by way of formal public sittings – usually regular weekly meetings - i. Revising, examining, reviewing and amending legislation passed by the first house ii. Providing a check to any legislation, where it is considered essential: for further consultation, to be examined by a select committee, provide for amendments to be drawn up. Or indeed not to pass a piece of legislation if it was thought necessary. Also provide for minor delays for the mover of any legislation to come back, usually within a week, with any additional information the Council may require before resuming the Bill’s passage.

216 Or, for the mover to provide additional information at a subsequent meeting iii. Placing legislation to Legislative Council Select Committees if so deemed iv. Examining Government policy by placing public questions v. Placing of motions for debate vi. Working ‘in committee style’ to effect points i, ii, iii and iv in – a - above vii. Moving legislation on behalf of (usually the Member whose department it is) departments which has progressed through the House of Keys viii. Meeting in public to take public evidence in relation to Legislative Council Select Committee work ix. Progress of a Bill may be paused as a result of representations from the public wishing to give public evidence at the ‘bar’ of Legislative Council, for which there is a special procedure. An MLC may wish to make representations to this effect / or President to instigate this procedure b. Back Office Work (not in public) – i. Routine, regular and ongoing meetings at Legislative Council offices between MLC’s to discuss, review, examine – government policy and consultations, Tynwald business, legislation, this can also be with MHK’s ii. Specific meetings with MHK’s / Ministers concerning the passage of legislation through Legco – where there may be problems identified by an MLC, or group of MLC’s with some legislation – causing consultation on a matter, such as the recent Beneficial Ownership Bill and Road Traffic Amendment Bill to cite but two exampls, causing a lot of MLC / Treasury / DOI liaison, or indeed agreed amendments formulated as a result (which occurred) to solve a legislative issue where the first house was struggling with options and time scales – it was resolved in Legislative Council iii. Individual work – reviewing a wide range of subject matter pertaining to Legislative Council, Tynwald and government business, policies, documents, financial matters and legislation, responding to consultations, document writing, document review, private Member issues – none departmental (of which that MLC is not a Member) issues taken up iv. Liaising with MHK’s / meeting MHK’s over issues in general, offering assistance, advice, providing reviews / opinions on matters, documents, policies. Being available for MHK’s, as a resource to access when requiring advice, opinion, or to requests to review documents, emerging policies. Using experience to assist v. Visiting departments to meet with ministers, politicians or staff to discuss, review or be briefed on pertinent subjects – which happens regularly, especially when moving legislation vi. Meeting department staff and officials at Legislative Buildings to discuss departmental business, or an individual subject of concern, or to be briefed personally

217 vii. Dealing with public inquiries via phone, e mail and hard copy letter – offering advice, assistance and other help. Or by way of requests for assistance / advice from MHK’s. All of which can occur frequently viii. Making representations to Departments as a result of a public inquiry, on behalf of that person, body or on behalf of an MHK requiring assistance ix. Phone calls, e mail correspondence required to all the above and on an extensive, ongoing basis x. Attendance at work: usually on a daily ‘office hours’ basis at Legislative Council Offices. But also to attend at Legislative Buildings – for example - Tynwald Committees, Tynwald and Legislative Council Chamber, other meetings as and when required – such as with the 1st and 2nd Clerks of Tynwald, Departments. Also for extended hours for example Tynwald sittings, late meetings xi. ‘Out of Hours’ Attendance – functions, events, meetings – such as public meetings, civic events / functions, Tynwald Committee responsibilities, Departmental responsibilities c. In Tynwald – formal public, monthly meetings of the IOM Parliament – Legislative Council sit with the House of Keys in the Tynwald Chamber - i. Examining, revising, analysing and testing of government policies, motions, secondary legislation and other government matters ii. Providing a check to the executive, where government business can be: halted by being defeated in Legislative Council and not brought back, delayed for further consultation, where it can be then brought back at a future sitting – in an amended format, withdrawn for further deliberation, or brought back the following month in the same format for a combined vote – but Legislative Council have made the point. I cite here two recent examples, but there are many more – 1 – Where the Health Minister, Mrs. Beecroft moved an amendment to Mr. Baker’s recent motion for the Tynwald Standing Committee – Social Affairs - to review historical child abuse Issues at the former Knottfield Children’s Home – for this motion not to go ahead – this was blocked by Legco, seeing it as a very important social issue concerning vulnerable people, and that the matter should proceed to committee – the matter is now to be investigated. Also the Road Tax Amendment Order to increase road vehicle duty on what Legco saw as an impractical and unfair approach – this order was lost, but caused a great deal of liaison and consultation between branches and the public. This resulted in a fairer Order being brought back to Tynwald by the DOI iii. Placing public questions to ministers iv. Placing private Member motions v. Making comment, observations and points to debates vi. Membership of Tynwald select committees, Scrutiny Committees, Other Tynwald Standing Committees of which there are many

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d. Taking on government departmental duties- i. Being part of the department political team, supporting the minister ii. Being part of the department executive management team which includes the minister, the chief executive and senior offices to provide political over sight of departmental business which invariably requires a departmental / political decision, approval, ratification or a matter which requires general departmental discussion iii. Taking on department divisional responsibilities iv. Taking on delegated departmental functions from the minister v. In undertaking the above the following activities are involved – participating in political, executive management team, divisional and any additional departmental, divisional meetings as required. This is where political over sight is needed. There may also be additional less formal meetings, especially at divisional or section level needed (this happens quite regularly). Meetings are usually to effect policy decisions on the monthly workings of the department by way of discussion, review, examination of issues where a departmental decision is required. Department and divisional meetings are usually monthly, some times more, again requiring political decision, ratification or approval of business vi. Attend additional meetings as circumstances require – which is quite a regular occurrence, or to meet a senior departmental officer, minister or other political members, especially relating to operational issues that do, regularly crop up

Analysis / Breakdown of Work Streams

As to the apportionment of each aspect of the role and functions of a Legislative Council Member: this is very difficult to break down to percentages due to the nature and demands of the different aspects of the duties involved and the work load that is streaming through at any given point. To try and commit to – Legco Work = such a % and departmental work = another % would be problematic to say the least.

The demands placed on all aspects to the role as listed above vary greatly and indeed for individual Members. For example when Tynwald is due to sit there will be an emphasis placed on preparatory Tynwald work, and then the sitting days themselves can be all consuming as far as time goes. When legislation is before the Legislative Council, then priority is given to that – such as all the background and preparatory work required when a Bill is due for introduction in the Council and of course the sitting days. Preparatory and back ground work which is essential for the role of an MLC can be intricate, laborious, complicated and time consuming. This can involve meetings,

219 information requests, back ground research and correspondence via hard copy letter or e mail.

However, work can commence on this preparatory aspect whilst a Bill is progressing in the House of Keys as a Member may well be in discussions with the MHK who is moving the Bill, accessing Hansard to assess progress and debates and or speaking with their minister / departmental officials. It may be that they will have already taken part in the legislative consultation process and or the generation of legislation from a department perspective as well. Legco Members do attend sittings of the House of Keys, when they can, to monitor and assess legislation at its various stages, picking up on points raised, key issues, sticking points, Members’ concerns and any amendments being tabled.

Departmental work can be quite demanding in its own right, and at times can also be ‘all consuming’ if there is a heavy work stream.

Or, at times, a ‘duel work stream’ has to be tackled – such as Legco and departmental work, not quite in tandem, but causes more hours to be applied as a result. The ebb and flow of work streams – Legco, Tynwald, departmental, ‘back office’, individual and public inquires – vary considerably and the amount of each demand at any given time. One public enquiry can cause an inordinate amount of work in its own right and result in a select committee being set up.

As a weighting exercise it could be roughly calculated by way of work demands in order of work load – highest first – Legco / back office, departmental, Tynwald, individual / private Member work and public inquiries. But this may not always be the case as pointed out above some aspects could just as easily jump to first place as a result of demand such as a ‘heavy Tynwald’ which can cause a large amount of background and preparatory work.

As previously stated, due to time constraints this is not a definitive breakdown of all of the functions of an MLC. There are undoubtedly more, which a fuller examination would highlight.

R.W. Henderson, MLC

References –

Tynwald Hansard Legislative Council Hansard Lord Lisvane Review of the Functioning of Tynwald Report, June, 20161

220

Jane Poole-Wilson MLC

221 222 From: Poole-Wilson, Jane (MLC) [mailto:[email protected]] Sent: 02 August 2017 12:21 To: Roger Phillips Cc: Jane Poole-Wilson Subject: Re: Work of an MLC

Dear Roger

I have had sight of the collective submission delivered by Mr Henderson on behalf of MLCs and am broadly supportive of the points made. In particular in just over two months' in the role I have noticed there is considerable time involved in preparing properly for sittings of both Legislative Council and Tynwald. In part this is volume of documentation to read and consider. It is also the related research and discussions to be able to carry out proper scrutiny. For example the recent Police (Detention and Bail) Bill 2017 was short in length but given its retrospective nature and the unusual circumstances the background research and discussions to properly scrutinize it involved a good half a day to a day of time.

I also recognize the aspect of the role which the collective submission refers to as "back office". I have been involved in dealing with a couple of individual matters on behalf of MHKs, numerous meetings and discussions which so far have been all very helpful in terms of briefings and understanding issues/policy and legislation and working on individual matters including submissions to consultations and research into Select Committee work and Equality matters.

Given my newness and that I have not had any Departmental experience I am unable to comment on the time involved in Departmental activities and the weight that should be apportioned to that as compared to other aspects of the role. It strikes me though that given the importance of the scrutiny role for MLCs and the time it demands if it is to be done well, it would be difficult I think to take on a larger Departmental role and still make adequate time to prepare properly for LegCo and Tynwald sittings as well as the other work which the collective submission refers to as "back office " work.

Kind regards Yours sincerely

Jane Poole-Wilson

223 224

Michael Coleman MLC

225 226 From: Coleman, Michael (MLC) [mailto:[email protected]] Sent: 02 August 2017 14:58 To: Bill Henderson Cc: Roger Phillips; Steve Rodan; Tim Crookall; Juan Turner; Geoff Corkish; Quinn, John; Jane Poole- Wilson; David Anderson Subject: Re: Select Committee on the Functions of Tynwald - Evidence on the Role and Functions of an MLC

Bill

I agree with you that a joint submission would have been preferable.

I think that what time we spend in our MLC role depends upon the roles we are likely occupy in the future following the Committee reporting

When I was a member for both DHSC and DHH and Chair of EPRC and therefore ex-officious on the Public Accounts Committee being an MLC was more than a full time job. Added to this I was Minister delegate for DHSC and DHA in the Minister's absence.

There is also Committee worth on Legco Committees, Petition of Doleance Committees and Select Committees.

What is also forgotten is that MLC's also deal with matters on behalf of constituents from many areas. Although not as onerous as for MHK's it is still time consuming.

Until Legco knows what tasks it will be allowed to perform it is impossible to assess a time commitment.

I hope I have provided some assistance with this complicated matter.

Best regards

Mike Coleman

Sent from my iPad

227 228

Juan Turner MLC

229 230 From: Juan Turner [mailto:[email protected]] Sent: 02 August 2017 17:44 To: Bill Henderson Cc: Roger Phillips; Steve Rodan; Tim Crookall; Geoff Corkish; Quinn, John; Jane Poole-Wilson; David Anderson; Michael Coleman Subject: Re: Select Committee on the Functions of Tynwald - Evidence on the Role and Functions of an MLC

I agree with Mike,

When I was Vice Chair of the Civil Service Commission I was also chairing disciplinary panels, whitley council, pay committees and other meetings to do with staff training and policy development. In DOT I had two very busy areas of Engineering Works and latterly Local Government Unit. In DAFF and DEFA I was responsible for the revised Fisheries legislation which took a great deal of time. Yet in some Departments he workload can be lighter depending on how much the Minister wishes to delegate.

The main issue is that you never know what will hit the inbox. I get a lot of people asking for help which is never ‘reported’ as they are private matters. Example one lady contacted me over assisted with her disabled child and I set up and attended meetings at DHSS - another was planning, and so the list can go on. As Mike said the variety is endless.

Personally I feel it can be apparent that ALL Tynwald members probably spend more time on Exec Gov roles than on the core of Legislation - I suspect legislation in Keys does not always get the attention it deserves.

Every Member is different and as time goes on that Member’s role will change constantly over the 5 year term as Committees come and go and as Dept.Memberships change etc.

Juan T

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