Constitutional developmentTynwald. | English sovereignty restored. | Monarch, Tynwald and Parliament. | Changes to the court system. | Does Parliament have the right to legislate for the Isle of Man? | Tynwald and Parliament as separate governments. | Current constitutional status
Tynwald, in the form of an assembly, dates back over 1100 years, even before the time of Godred Crovan. At the beginning of the Stanley era, Tynwald had already assumed the form of a 'law speaking' assembly. Its two officers learned in law, the Deemsters, applied their own unwritten law with the help of the House of Keys.
Prior to the Stanleys assuming the Lordship of Mann, the Island had no real concept of making their own new law from nothing. It had been derived from a number of sources of other law, mainly from the Norse and Scottish Kings, before Henry IV seized control of the Island in 1399. Mostly the law was made by the Deemsters and passed between them, meaning the Deemsters could effectively control the law. This was called 'breast' law.
However, when John II Stanley began the process of writing down the unwritten laws of the Island around 1430, the function of Tynwald didn't really change. Their main function was to place the old laws down onto record, not to make new ones.
After 1422, it was ordered that all records had to be in 'plain with full letters' and that all pleas must be written down on to the court rolls, which were kept by the Clerk of the Rolls.
It wasn't until the 17th century that the Keys became more involved in the process of making legislation. This was recorded in Deemster Parr's Abstract, where he wrote that obtaining the Keys consent to legislation had now become essential. Deemster Parr's 'Abridgement of the Established and Practical Laws' became the first comprehensive source of Manx law.
In 1737, statutes, which became a Manx 'Bill of Rights' establishing the right to jury trial in almost all cases, were signed. Under both the Stanleys, then later on the Murrays, the judicial work of Tynwald began to slowly pass to the two Deemsters.
English sovereignty restored.
The English Crown first began the process of buying some of the regalities back from the Atholls. In 1765, under the Isle of Man Purchase Act (also known as the Act of Revestment), the Crown bought the principle regalities from the Duke of Atholl for £70,000. Although the Duke remained as Lord of Mann, this purchase effectively gave Westminster control over the Island.
Over the next forty years the English government carried on buying back more of the regalities until 1806 when the last Lord of Mann, John Murray 4th Duke of Atholl, sold the remaining sovereignty for £416,000.
After this, King George III of England, the new Lord of Mann, appointed the first royal Lieutenant Governor, Cornelius Smelt.
The relationship between the English monarch, Tynwald and the Westminster Parliament.
After beginning to purchase the regalities there was no attempt by the English King to make any new legislation between 1765 and 1776. In 1776 he gave his assent to the Resultant Bill, meaning that all new acts of Tynwald are enacted by the monarch with the advice of both the Council and the Keys. This can be seen as the beginning of the Royal Assent all acts of Tynwald must now have.
In 1782 all dealings with the Isle of Man were transferred to the jurisdiction of the Home Office. They would remain there until 2001, when the Manx functions were transferred from the Home Office to the Lord Chancellor's department.
Both the chambers of Tynwald have changed significantly over time. The Council (with the exception of the Bishop) has now become an indirectly elected chamber. It also now joins the Keys in electing a President of Tynwald (Constitution Act 1990) and a Chief Minister (Constitution (executive council) (amendment) Act 1986).
The main changes to Tynwald have come about in the changing status of the Lieutenant Governor. Most of his historical functions have now been transferred to internal government departments and their respective ministers. The other big change is that the monarch's Royal Assent to Acts of Tynwald has now, in most cases, been passed to the Governor.
Changes to the court system.
Before the 19th century there was very little change in the judicial structure and function. The only main development pre-19th century was the creation of the High Bailiff with the High Bailiff's Act of 1777. Originally there were 4 High Bailiffs, one for Ramsey, Peel, Castletown and Douglas. In 1911 the number was dropped to 2, with the Castletown and Douglas High Bailiffs' merging into one and Peel and Ramsey into another. Eventually in 1933 the two remaining High Bailiffs were merged to form the new office of the High Bailiff of the Isle of Man.
During the 19th century the scope and composition of the courts changed dramatically. The first major change was that judgments of UK courts became admissible in Isle of Man courts in 1814. This was the beginning of the shift away from the traditional Manx judicial model and towards the English model.
In 1825 the Court of General Gaol Delivery became completely separate from Tynwald. Up until then Tynwald sat as part of the Court, however after this year the Court was comprised of the Governor, the Clerk of the Rolls, the two Deemsters and a jury of twelve men. At the same time the Deemsters stopped sitting in the Chancery Court, leaving just the Governor and Clerk of the Rolls sitting there.
The Judicial Committee Act of 1833 established that the last Court of Appeal in the Isle of Man would be the monarch's Privy Council. This is still the case today.
The Keys lose their judicial position.
Up until 1825 the 24 members of the House of Keys sat as part of the Court of General Gaol Delivery and as the Appellate (appeal) body of the courts.
In 1823 the Duke of Atholl complained that the Keys were exceeding their power. His complaint was, as they were responsible for the law, they were compromised and shouldn't sit in the court where it is exercised. Later that year both the Council and Keys lost their right to sit in the Court of General Gaol Delivery.
In 1866 they then lost their right to sit as the appellate (appeal) jurisdiction.
Judicature Act 1883.
The main changes to the courts were contained in the Judicature Act of 1883. This act dramatically changed both the composition and structure of the courts system.
Firstly it set down that the judges of the Isle of Man High Court were
- the Lieutenant Governor;
- the two Deemsters; and
- the Clerk of the Rolls.
This effectively removed any judicial function of the Keys. It also removed the judicial function of the 'Staff of Government' who were the assessors who helped the Lieutenant Governor in hearing appeals. The act replaced these staff with the two Deemsters and the Clerk of the Rolls, although the court retained the name 'Staff of Government'
The Staff of Government, Chancery, Exchequer, Common law and Admiralty courts were brought together to form the High Court of Justice of the Isle of Man, with the Lieutenant Governor as its president.
As the House of Keys was stripped of its jurisdiction as the appellate (appeal) court, the Staff of Government Division was reconstituted as the Court of Appeal, hearing appeals from all the other jurisdictions of the High Court.
The Chancery Division, as the two Deemsters no longer sat in it, was solely presided over by the Clerk of the Rolls. This position was combined with the position of First Deemster by the Judicature (Amendment) Act 1918, meaning the First Deemster then sat in this court.
In 1884 the ecclesiastical courts were stripped of their right to hear probate and matrimonial matters. These were transferred to the temporal courts and would eventually end up being heard in their respective divisions in the High Court.
Although technically separate, the Court of General Gaol Delivery is now administered as part of the High Court and is presided over by the Second Deemster. The written laws of the Court of General Gaol Delivery were first written down in the 1817 Codification of Criminal Law, which set out that there would be no punishment until found guilty and listed all criminal offences with the punishments for each, if found guilty.
The Lieutenant Governor ceased to be a judge of the High Court when the Judicature Act (amendment) Act 1921 removed him from this role. The High Court Act 1991 set down that the judges of the High Court would be;
- the First Deemster;
- the Second Deemster;
- the Deputy Deemster; and
- the Judge of Appeal (who must be a Queen's Counsel) as an independent judge sitting in the Staff of Government Division.
Does Parliament still have the right to make laws for the Isle of Man?
When a country assumes sovereignty over another country by force, it can then change any laws it wants to in the conquered country and rule how it sees fit. However if a sovereign of a country inherits a country, then they must rule it by the current laws of that land. This was brought up in 'Calvin's case' (about James I's right to legislate when he became King of England, a throne he inherited, not conquered) and set the question; did Henry IV conquer the Isle of Man, or inherit it in 1399?
This question was raised again in the Manx case of Re CB radio Distributors MLR 382 (1983). In this case, Deemster Hytner J.A. considered the question of whether Tynwald could legislate for itself and whether either Parliament's or Tynwald's legislation would be primary. After much deliberation, it was decided that it should be explained in similar terms to Calais when it was under English Rule. Although it accepted that the Kingdom of Mann was indeed conquered by Henry IV, the Island was never absorbed by the English or later British Realm. This was the same as in the case of Calais, although the English conquered it, it was left to be governed by its existing laws with little interference from the English Crown.
There has also been the point raised that the powers granted by the Stanleys and Murrays to the House of Keys could not be withdrawn. However as the power both the Stanleys and Murrays granted to the Keys was from their own borrowed prerogative and not concessions of the monarch; they could be withdrawn after revestment.
This would suggest that parliament could give, or withdraw, the power to legislate at its own will and for a time this could be seen as being true. The Act of Revestment, the Smuggling Act 1765 and other acts relating to customs and shipping were all passed by Parliament without the consent of Tynwald. However, after this initial surge of legislation, Parliament began to step back from legislating for the Island.
The case of Campbell v Hall 1 Cowp 204 (1774) finally answered the question as to whether Parliament can legislate at its own will for its dependencies. It was held that once the Crown had irrevocably granted to a territory the right to legislate for themselves, it could no longer legislate by decree without the consent of the dependencies legislature. However, the territorial legislation would not be supreme; this belonged to the King/Queen in Parliament. This effectively meant that although a territory could legislate for itself, it would have to give its consent to any legislation passed by Parliament for it. However the Monarch would retain the right to override any legislation, and if the Monarch's legislation and the territories conflicted, the Monarch's would always be supreme.
Although Parliament's participation in legislating for the Island had diminished somewhat, it still had a measure of control with the prerogative of Royal Assent. Although it is rarely refused, there have been cases where a Manx Act conflicted with a corresponding Parliament one and Royal Assent was refused. The last time this happened was in 1924, where the Church Assembly Act was refused assent as it was incompatible with a recent act of Parliament for rules concerning Canterbury and York.
Parliament has also, on occasions, exercised the Royal Prerogative in respect of issues arising from the Isle of Man. This has been mainly the Royal Prerogative of Mercy in relation to those sentenced to death. Between 1973 and 1992, five people were sentenced to death by the Court of General Gaol Delivery, all of which were commuted to life imprisonment by the English Home Secretary. Deemster Henry Callow became the last judge in the UK to ever sentence anyone to death in 1992 and the death sentence was officially abolished in 1993.
Tynwald and Parliament as separate governments.
The fact that it was possible for the English Parliament to legislate for the Isle of Man does not mean that it would always intend to include the Island in its Acts of Parliament. With the Monarch's status as Lord of Mann, it would suggest that the two governments are in fact separate entities, as the monarch is King/Queen of England in one, but Lord of Mann in the other. The Monarch might very well have intended both countries to be ruled by separate parliaments, with themselves as the head of both. This being said it was English troops that 'conquered' the Isle of Man and therefore England should retain an interest in its government.
In 1607, in the Earl of Derby's case (which restored the Stanley's Lordship of Mann) it was recognised that any Acts of Parliament passed after the Island was 'conquered' would not bind the Island, unless it was specifically mentioned in the Act itself.
This point was raised again in the Manx Court in the Staff of Government case of AG v Harris & Mylrea (1894) ,where the Court held that Parliament's intention to bind the Island to any act must have words to that intention that are 'unmistakable'.
Current constitutional status
Since the late 19th century, the Isle of Man has enjoyed what can be described as mostly home rule. There has been very little participation by the English Parliament in the legislative process, indeed in recent times the only measure of participation has been the Royal Assent of Acts of Tynwald.
Outside of this statement there is very little constitutional basis to give a definitive answer as to whether Tynwald or Parliament would prevail as the ultimate authority of the Isle of Man. Indeed, unless a case comes in the future which asks the question; the current position is unlikely to change. Both Tynwald and Parliament have seemingly accepted their positions with regards to the Isle of Man and as it stands the Island is effectively self governed.
James Robinson - 2009