Crown Appointments By The Governor!

[Dodger]

Extract from hansard:-

"Mr Speaker, Governor in Council is that a matter is considered by the Council of Ministers: if they approve it, it is then forwarded to His Excellency for him to consider. He considers it. He does not rubber stamp it, he considers it, because if he felt, for example, that the Council of Ministers had acted improperly I am sure he would refer it back to the Council of Ministers, but if he is content then he will agree to it and then it becomes a Governor in Council determination and that is a procedure well used throughout Government in terms of where it goes to that little higher level where there are safeguards for the Island and its people."

 

So it is the council of ministers who will determine the salaries and then the Governor will get to either agree or pass it back!

 

The Governor in council (behind the scenes) will determine the salaries of crown appointments and we are paying for it!

 

If they are crown appointments they should be paid for by the UK government not by ours!

 

IN THE KEYS - 4th March 2008

 

ADMINISTRATION OF JUSTICE BILL 2008

 

Amendments to be moved by Mr Brown -

 

AMENDMENTS

 

CLAUSE 1

 

Page 2 lines 32 and 33 and Page 3 lines 1 to 5 :in paragraph (2) delete the substituted

 

paragraphs (8) and (9).

 

NEW CLAUSE

 

That new clause [A] be agreed in principle to go after clause 7 –

 

“Salaries of certain Crown Appointments

 

[A.] After section 57 of the 1991 Act, insert the following section –

 

“57A. (1) The salaries of the judges of the High Court and the Attorney General

 

shall be determined by the Governor in Council and shall be charged on, and

 

paid out of, the General Revenues of the Island.

 

(2) Any salary payable under this section may be increased, but not

 

reduced, by a determination or further determination under this section.”.”,

[triskelion]

The UK Government should pay for our judges and attorney general?

[Skeddan]

Maybe the real concern should be that the Governor in Council (behind the scenes) might increase any particular High Court Judge's salary - some might think this is not real separation and allows Executive interference with Judiciary - i.e. dangling the prospect of a nice pay rise to a particular Judge sitting on a case - or a group of favoured 'tame' judges.

 

(2) Any salary payable under this section may be increased, but not reduced, by a determination or further determination under this section.”.

(my italics)

 

Of course that would be very improper, and one cannot possibly imagine etc. etc.

[triskelion]

To what real extent is the Governor a member of the executive though?

[thebees]

To the revolution!

[nipper]

The UK Government should pay for our judges and attorney general?

 

Yes, I believe at long last they should.

 

The cosey (sorry for using that word but it is the best available) relationship between the Isle of Man Judiciary and their former bed-fellow Advocates, has to stop.

 

"The time to stop it is now"

 

Too many innocent people have had their lives ruined in the name of £££££greed by these people.

[John Wright]

and you don't think that when they did, they didn't just add it on to the cost of common or shared services.

[Cronky]

and you don't think that when they did, they didn't just add it on to the cost of common or shared services.

 

John, can you expand on that a bit? Your point is not clear.

[John Wright]

Crown appointments historically were paid for by the Crown out of customs duty which went straight to London

 

In 1867 when we got elections we were given back a bit of our money to fund harbours etc but the rest was kept to pay interest onthe laon for the payouts to the Athols and the cost of administering the place

 

Whenwe got income tacx in WW1 to pay for breda subsidy and eventually pensions that is all it did. Duty still went to the UK.

 

In the meantime theIOM started to be forced to pat for services like Defence, it took on the interrest lianbility of a chunk of war loan. It started to have to pay for common services other than defence.

 

We eventually restructured our indirect taxation under the original common purse agreement and then VAT but we still paid for Defence and common and administrstive services such as wages of Judges and Governors, ie Crown appointmenst.

 

Eventually, and I cannot remenber the year these got transferrred to the Islands own revenue and government. That is where thay are now, paid by us, not a foreign occupying power, That is what we ought to aspire to, but if we do go back to the judges being paid by Westminster you can bet your bottom dollar that the cost will be charged to the IOM anyway.

[Skeddan]

Eventually, and I cannot remenber the year these got transferrred to the Islands own revenue and government. That is where thay are now, paid by us, not a foreign occupying power, That is what we ought to aspire to, but if we do go back to the judges being paid by Westminster you can bet your bottom dollar that the cost will be charged to the IOM anyway.

John, could you please clarify - is it your view that the UK's relationship with IoM is that of a foreign occupying power?

[nipper]

The Isle of Man has shown that it is not capable of administering a just and fair democracy. Simple as that really.

[John Wright]

Eventually, and I cannot remenber the year these got transferrred to the Islands own revenue and government. That is where thay are now, paid by us, not a foreign occupying power, That is what we ought to aspire to, but if we do go back to the judges being paid by Westminster you can bet your bottom dollar that the cost will be charged to the IOM anyway.

John, could you please clarify - is it your view that the UK's relationship with IoM is that of a foreign occupying power?

 

That is the effect of it

 

If we choose we will be allowed to go alone

 

If we don't Westmisnter will send a governor and excrcise politicalcontrol and veto over Council Of Ministers via the AG

 

If we go alone we have to join a trade block, EEA, EU or become state of the US.

 

EEA is same as EU, you get all the same free trade and regulations but absolutely no control or say but you don't have to pay in.

[Skeddan]

Eventually, and I cannot remenber the year these got transferrred to the Islands own revenue and government. That is where thay are now, paid by us, not a foreign occupying power, That is what we ought to aspire to, but if we do go back to the judges being paid by Westminster you can bet your bottom dollar that the cost will be charged to the IOM anyway.

John, could you please clarify - is it your view that the UK's relationship with IoM is that of a foreign occupying power?

 

That is the effect of it

OK, but is it your view that is the fact of it - i.e. is it your view that the legal and constitutional relationship is actually that of a foreign occupying power / 'Administering Power' - or if not what is it (e.g. sovereignty belongs to the UK - in personal union, political union, or some other)? If UK's relationship with IoM is that of an Administering Power, then is it any surprise that this is the effect of it?

 

If we don't Westmisnter will send a governor and excrcise politicalcontrol and veto over Council Of Ministers via the AG

Is this also current situation in your view?

[John Wright]

Skeddan I have made my peronal views very plain. Why do you repeat them and ask me to confirm them?

 

Until 1765 the IOM was not a sovereign state as such but was a state whose king or lord recognized the suzerainty or overlordship of another crown, It was semi feudal. The demonstrartion of overlordship, ie the price to pay was the two falcons.

 

This was not uncommon. England only became a united sovereign state in the early 1000's and France much later. At diiferent times different lords or kings in diferent aresa held the upper hand and allegiance and suzerainty changed. It was however personal, not a country thing as we now understand.

 

In 1765 the British Government bought out the kingship rights of the Athols and merged the revenues of England and the IOM. England as a country became an administering power by purchase. The Athols lingered on as Governorsin Chief and, in effect, lords of the manor. The English Government bought out the manor rights as well. All income from IOM was centralised in London and some given to the Governor to spend.

 

There was no income tax, duties went to London. The Keys were powerless.

 

Post 1866 more income and freedom has come our way, eventaully all the customs income and VAT plus we introduced our own income tax.Slowly we have assumed more control. But that does not mean in law that England has given it up, it allows us to do our own thing within limits. It has ultimate control at present but devolves a great deal of it.

 

The Governor used to be the control mechanism used by Whithall, originally with an absolute veto. His powers are less nowm those of the AG much enlarged. he sits in the political power house to advise bu also to say Mr Brown he say no.

 

Utimately we can become independent with the Queen Lord of Mann as our head of Stae, represented by someone with no real power, or we can become a republic or we can stay as we are.

 

If we stay where we are we get control by Whithall via a Governor and the AG and the Governmet of England does adminiter soemthings for us and tell us how we administer others

 

What you call it doesn't really matter, its the effect, that is incontrovertible

[Skeddan]

John, you originally said the UK was a "foreign occupying power" (i.e. a sovereign power which exercises effective control over a territory to which it has no sovereign title). What you now describe is something which is quite different from a "foreign occupying power."

 

I agree with you that the UK's relationship with IoM is effectively that of a foreign occupying power, and the powers the UK has over IoM precisely fits with such a relationship.

 

However I disagree with what you now seem to be saying - that the UK acquired title to IoM by purchase. That view is inconsistent with the kind of control as an occupying power that you note.

 

IMO the UK acts 'as if' it were an occupying power not because of any constitutional or administrative impropriety or confusion, but simply because that is what it is and hence it is required to keep to the principles governing such a relationship. That explanation is simple, straightforward and fits with the facts.

 

Until 1765 the IOM was not a sovereign state as such but was a state whose king or lord recognized the suzerainty or overlordship of another crown, It was semi feudal. The demonstrartion of overlordship, ie the price to pay was the two falcons.

In Calvin's case Lord Coke made the point that IoM was an 'ancient and absolute kingdom'. The relationship of suzerainty and homage was one of protection which did not diminish IoM's status as a kingdom and sovereign state. See for example:

 

Vattel Bk1, Ch1, S7 and S8 and Oppenheim's discussion of suzerainty and sovereignty.

 

The full sovereign autonomy of IoM is clearly set out in the 1610 Act: the Crown of England had no claim, right or authority over IoM other than the two falcons - which was merely a token honorary obligation. In return for paying this price the Crown owed certain feudal obligations – including duty to defend and protect the vassal kingdom. The Crown did not have any rights, powers, or authority over IoM beyond this and it left "independency and sovereign authority in the administration of the state"; IoM was thus a sovereign state (much like Scotland was when in a personal union under James VI / I, and with similar advantages of non-alienage).

 

In 1765 the British Government bought out the kingship rights of the Athols and merged the revenues of England and the IOM. England as a country became an administering power by purchase.

Had there been a bona fide purchase of sovereignty and rights of Atholl's as you suggest, then the UK (The Crown of England, whether in Council or in Parliament) would have had no more powers than the Stanleys and Atholls had prior to 1765 (nemo dat). Westminster could no more legislate for IoM than it could have legislated for Scotland before the Act of Union or for Hanover when this was in personal union.

 

Prior to 1765 IoM was outside the jurisdiction of the UK, out of the power of chancery, the King's writs did not run there, and no general act of Parliament was of any force (though as noted in the Earl of Derby's case in 1607, private acts or special acts could apply).

 

Post 1765 Westminster assumes the power to legislate for IoM which it did not have before, even though the Stanleys and Atholls had no such power without authority of Keys and Tynwald. How did the UK acquire the 'ultimate control' and power to legislate in this manner?

 

…it allows us to do our own thing within limits. It has ultimate control at present but devolves a great deal of it.

A key point is how the extent of these limits is determined and the basis and rationale of this ultimate control. As you state very plainly and astutely, the nature of this is in effect that of a foreign occupying power.

 

To get answers one has to walk the cat backwards and examine the basis for the UK's authority over IoM and the rights it acquired in 1765.

 

The 1765 Act was a General Act, and so did not extend to IoM. Also the chain of title of the estate that was being purchased as set out in the preamble must be seen in the light of the restraint on alienation in the 1610 Private Act. The estate that was purchased from the Atholl Trustees was not the Island, the kingship rights, nor sovereignty, nor anything else other than certain manorial leases for 21 years - which is the most that could have passed to the Trustees given the restraint on alienation.

 

If the Crown of England did not acquire sovereign title to IoM, then in 1765 after British warships invaded Manks territorial waters, and British troops arrived in IoM and hoisted the Union Flag, and IoM came under English subjugation, IoM at that point came under the effective control of the UK as a foreign occupying power.

 

This being so, occupation law would then apply, as in any case of effective control by a sovereign power over a territory to which it has no sovereign title.

 

The principles of occupation law are set out in the Hague and Geneva Conventions, but the basics of these had long been customary law of nations based on 'doctrine of implied mandate' from absent sovereign noted by Grotius. As part of customary law of nations, this would also be part of English common law, and thus the Crown is constrained to abide by these principles even if not formally incorporated.

 

The limits of authority exercised by the UK over IoM and the nature of its 'ultimate responsibility' accord with basic principles set out in Hague Convention art. 43:

 

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.

 

Note how this yields both the type of 'home rule' and responsibility for good government seen in the relationship with the UK. Also this accords with the levying of taxes and contributions which (I take it) you observe is in effect the same per a foreign occupying power.

 

If the UK does not have sovereign title to IoM and is an occupying power, it all adds up – and this fits with the relevant statutes and facts. If the Crown had acquired sovereignty this would be completely inconsistent with what is seen in practice and this would be 'highly irregular' and exceeding limits of proper authority.

 

At the very least any counter-argument that the Crown did acquire sovereign title to IoM in 1765 would have to take into account that the Crown cannot acquire anything but by matter of judicial record properly enrolled. However no such record exists.

 

What you call it doesn't really matter, its the effect, that is incontrovertible.

It matters a great deal as to whether the UK has sovereign title to IoM or not. There is a big difference in the legal and constitutional relationship and what options might be available for a change in status of IoM and how this might be achieved. This of course also affects the delimitation of responsibilities, and this will have all sorts of consequences - including the effects which you say are incontrovertible.

 

Hence I agree with you that the UK is a foreign occupying power - but it seems not for the same reasons.