Power Lost To Westminster?

[Cronky]

probably from the need these days for photographic ID? same if you want to swap currencies at a travel agents. passport is the usual as if you are a traveller you are likely to have one? . second to that is a driving licence, but other ID's with a photo can be used. i have changed currencies and proved who i am to get a driving licence with my work ID.

 

Only the airlines requre photo ID for the Isle of Man. They cannot demand a passport because of we are in the Common Travel Area. They may 'recommend' that you carry a passport but they have no right, at present, to do so.

[Chinahand]

Suppose that IoM is a de facto possession of the Crown rather than a de jure possession - as seems to fit precisely with the evidence. The UK's powers would thus be delimited in much the same way as an Administering Power is responsible for territory under its control according to Occupation Law.

Skeddan I see no reason to play this game of suppose - you seem fixated to the idea the UK is an occupying power - good for you, but this idea is just not supported by reality.

 

Chinahand, if you can make a robust case that IoM is not a de facto possession of the Crown,

 

I am not doing that and I am not playing that game. The IOM is a de jure Crown Dependency - I wonder how many people would claim otherwise. Not many is my guess. You are welcome to make your arguments about occupying powers etc, but ground it in reality - are you saying Kilbrandon says this - I doubt it!

 

If it is a de jure possession, then presumably it is in a personal union, in which case the UK Parliament would have no authority whatsoever over IoM

 

I think you need to read what I have posted - the UK does have powers, these powers have been deligated by the monarch to the Privy council and on to a commitee of the Privy Council which is now an arm of the UK government. I do not need your "if"s and "presumably"s

[Skeddan]

Chinahand - what reality are you basing you unfounded assertion that IoM is a de jure possession of the Crown? None. Just assertion. Kilbrandon doesn't explain the constitutional relationship - and fudges the question entirely. If it was de jure then it out to be straightforward enough to make out the basis for this as nothing can come into the Crown's hands but by matter of record.

 

You insist it is a de jure possession - so it is either held in a personal union or a political union. A political union would make IoM part of the UK - which it isn't. A personal union would put it out of the jurisdiction of the UK - which it isn't. Do you want to insist that there can be de jure possession other than a personal union or political union? There's no such thing - because these types of de jure ownership equate to the notion of the King's two bodies - the personal and political. But, if you want to indulge in a fantasy about the monarch having some mysterious third body - well enjoy!

 

As for grounding consideration on evidence, arguments, and reality - that's the game you don't seem to want to play - instead you prefer to keep to brazen assertion and dismissing out of hand anything to the contrary or which shows the absurdity of your claim. Sticking fingers in your ears and going la la la to the tune of Rule Britannia doesn't really suggest that you can make out a robust constitutional argument in support of your claim IoM is a de jure possession of the Crown. Well Kibrandon couldn't either, so no surprise there.

 

I can only wonder why you might find the idea that IoM is a de facto possession so impossible to even contemplate. Is it perhaps some unshakeable loyalty to the English royal family and utter faith that they could do no wrong? (Not that being an Adminstering Power need imply any wrongful appropriation - it can arise as the result of wardship or a custodial relationship for example - as when the USA acted as the Administering Power for Iceland during WWII). Your dogmatic loyalism is really quite admirable - heroic even - and very quaint. ("Ours is not to reason why...")

 

There's a good old English word for the kind of high handed unsubstantiated pronouncements you make - Bollocks.

[VinnieK]

The cynics amoungst us may like to claim the UK can do what ever it likes, but they have to use the legal structures that do exist.

 

I wouldn't go that far, but the fact is that Parliament reserves the right to legislate for the Island against its wishes on all matters, and can do quite easily and entirely legally, again by using an order in council. Consent and consultation is only a convention, not a feature of the constitution. Tynwald did seek to have this convention given the status of a law (Kilbrandon Commission), but this was denied by Parliament.

 

VinnieK I not sure that I totally agree - as I've said there is the defacto reality, but I think it is very difficult for the UK parliament to legislate on purely domestic matters - the examples you site are shipping and airspace (telecoms) related. Which, as you admit, are covered as exceptions in the link I quoted

 

Um... In your quote the matter of shipping and airspace were cited as examples where the convention of seeking consent applies:

 

"The Islands legislate for the territorial waters adjacent to them and for the airspace over their territories and over those territorial waters. ... t would be contrary to normal constitutional practice for [the UK Parliament] to [use its residual powers, if any, to legislate for the territorial waters adjacent to them and for the airspace over their territories and over those territorial waters] in matters that are domestic to the Islands."

 

And yet the example I provided shows Parliament legislating directly for the Island's territorial waters after it had failed in Tynwald. Also, I don't remember admitting that shipping and airspace were covered as exceptions.

 

They can bully the IOM to do it, and I suppose create a governance crisis on the Island - cancelling common purse or whatever - and then say they have to step in under their "emergency powers", but these are not reasonable scenarios.

 

Why would there be a crisis of government on the Island? It would certainly piss people off, but Westminster doesn't have to resort to bullying when it can simply overrule Tynwald, as it has done in the past. Now I'm not saying that it would, but it has in the past and continues to remain a possibility. There's nothing illegal or constitutionally tricky about it: If it was deemed absolutely vital that the Island have ID cards, and Tynwald was proving difficult, an act could be drawn up with no greater difficulty than specifying that its contents apply to the Isle of Man. I'm not sure where you're getting the idea that there's some kind of explicit constitutional limit on Westminster's power over the crown dependencies. I think we have the ability to appeal against it, but that's about the extent of our powers.

[Theodolite]

This needs putting into perspective.

 

Does anyone really believe that Westminster would give up anything at all to a Tax Haven the size of a weekend city football crowd?

[Skeddan]

the fact is that Parliament reserves the right to legislate for the Island against its wishes on all matters, and can do quite easily and entirely legally, again by using an order in council. Consent and consultation is only a convention, not a feature of the constitution.

 

VinnieK - yes - and this is a good point - the powers is from Order in Council - (King/Queen) - though can also be exercised through Parliament (King/Queen in Parliament). The reason for this is that the power to impose legislation (or ordinances) is a prerogative power of the Crown.

 

The question which has never been answered is how would the Crown have such power to impose legislation without approval of Tynwald. If all that happened is that the Crown purchased the rights from the Atholl's the Crown would have no more power to do this than the Atholl's had (which they didn't).

 

However such prerogative powers (aka 'residual powers') can be legitimately exercised by the Crown over certain territories in its possession. IoM clearly fits into that category. From that it's not hard to work out the constitutional relationship.

 

(edited to add link on prerogative powers - and accountability to parliament for these)

 

http://hansard.millbanksystems.com/written...rogative-powers

[Chinahand]

Why would there be a crisis of government on the Island? It would certainly piss people off, but Westminster doesn't have to resort to bullying when it can simply overrule Tynwald, as it has done in the past. Now I'm not saying that it would, but it has in the past and continues to remain a possibility. There's nothing illegal or constitutionally tricky about it: If it was deemed absolutely vital that the Island have ID cards, and Tynwald was proving difficult, an act could be drawn up with no greater difficulty than specifying that its contents apply to the Isle of Man. I'm not sure where you're getting the idea that there's some kind of explicit constitutional limit on Westminster's power over the crown dependencies. I think we have the ability to appeal against it, but that's about the extent of our powers.

I think you are probably right about this and I am wrong. But I still feel that having the UK government legislating for the IOM on a domestic issue would be an entirely exceptional circumstance and would result in a constitutional crisis - or Tony Brown getting very upset and red in the face anyway!

 

The UK government in their written answer quoted on wikipedia indicates that it would be exceptional:

 

'The Crown is ultimately responsible for the good government of the Crown Dependencies. This means that, in the circumstances of a grave breakdown or failure in the administration of justice or civil order, the residual prerogative power of the Crown could be used to intervene in the internal affairs of the Channel Islands and the Isle of Man. It is unhelpful to the relationship between Her Majesty's Government and the Islands to speculate about the hypothetical and highly unlikely circumstances in which such intervention might take place.'

 

It would be up to an Isle of Man judge to decide whether the circumstances were ripe for an intervention or not - to say that this would be a matter of "no greater difficulty than specifying that its contents apply to the Isle of Man" seems too simplistic. I know of no examples other than the pirate radio one this century and that involved using Manx water to operate into the UK - ie the UK controlling its airwaves not a wholly domestic issue.

[Skeddan]

the residual prerogative power of the Crown could be used to intervene in the internal affairs of the Channel Islands and the Isle of Man.

 

"It would be up to an Isle of Man judge to decide whether the circumstances were ripe for an intervention or not "

 

Chinahand - where on earth do you get that idea from? I'd think IoM has no more say in whether or not prerogative powers should be exercised in the internal affairs than it has any power to determine whether or not they should be exercised in international affairs. Maybe a courtesy consultation (but not mandatory), but there is no basis I've ever seen for supposing the Crown's exercise of royal prerogative is dependent on the decision of an IoM judge.

 

You make this statement as if based on great authority. Can you please cite the recognised constitutional authority on this (other than yourself). Kilbrandon perhaps??? Actually, don't bother - I remember - you're not interested in 'playing that game'.

 

Chinahand - this is blatantly yet another statement which is simply hot air based on your own fancy - not even solid enough to be considered half-baked. Your notions about the UK's relationship with IoM are all very pleasant and nice, and maybe how one might wish it to be - but your fantasies and wishes don't make it so. If you think it should be up to an IoM judge, say so - but don't delude yourself that because you think so it would be up to an IoM judge.

[VinnieK]

'The Crown is ultimately responsible for the good government of the Crown Dependencies. This means that, in the circumstances of a grave breakdown or failure in the administration of justice or civil order, the residual prerogative power of the Crown could be used to intervene in the internal affairs of the Channel Islands and the Isle of Man. It is unhelpful to the relationship between Her Majesty's Government and the Islands to speculate about the hypothetical and highly unlikely circumstances in which such intervention might take place.'

 

It would be up to an Isle of Man judge to decide whether the circumstances were ripe for an intervention or not - to say that this would be a matter of "no greater difficulty than specifying that its contents apply to the Isle of Man" seems too simplistic.

 

It does seem simplistic, but that really is all it takes to apply an act to the Isle of Man in terms of procedure and legality. In terms of convention and tradition it's a little more tricky, but these restrictions aren't legally binding. Also, where do you get the idea that it would be up to an Isle of Man judge to decide on circumstances? I'm not trying to have a pop at you, I'd just like to know if it can be sourced - the impression I have is that it's up to no one but the Privy Council to determine when intervention is necessary. In fact, I can't even see why you'd need a judge: this isn't a point of legal contention and Parliament can intervene at its discretion. There's no body of law detailing criteria for this from which a judge could even begin to work.

 

I know of no examples other than the pirate radio one this century and that involved using Manx water to operate into the UK - ie the UK controlling its airwaves not a wholly domestic issue.

 

So it is with ID cards. As far as I understand it, the UK wants ID cards for two reasons: Security and to monitor immigration. Some would view the Isle of Man as a potential back door into the UK if its inhabitants weren't required to have ID cards of the sort proposed for their UK counterparts. I'm not saying that I agree with this, just that it's possible to make a case that ID cards are not simply a domestic issue for the Island.

[manshimajin]

There's the monarch, the monarch rules via the Privy Council. The Privy council is constitutionally independent of the UK - governing the UK is one segement of its job - technically the UK Cabinet is a commitee of the Privy Council, but the Privy council also has the job of governing Canada, Australia, parts of the Caribean etc etc - all of these jobs are also segmented off to Governor Generals, sub commitees etc etc.

Sorry to disabuse you but the role of the Privy Council in Australian affairs was finally severed by the Australia Acts 1986. There is no right of appeal to the Privy Council from Australia and the Queen is head of state in her capacity as Queen of Australia not Queen of the UK.

 

Appeals from Australian courts to the Privy Council were initially possible, however the Privy Council (Limitation of Appeals) Act 1968 closed off all appeals to the Privy Council in matters involving federal legislation, and the Privy Council (Appeals from the High Court) Act 1975 closed almost all routes of appeal from the High Court. The Australia Act 1986 eliminated appeals from state Supreme Courts to the Privy Council. Appeals from the High Court to the Privy Council are now only theoretically possible in inter se matters with leave of the High Court under section 74 of the Constitution; however the High Court has indicated it will not grant such leave in the future.

 

In other words Australia told the Privy Council to politely go away as it was not needed.

[Chinahand]

... where do you get the idea that it would be up to an Isle of Man judge to decide on circumstances? I'm not trying to have a pop at you, I'd just like to know if it can be sourced - the impression I have is that it's up to no one but the Privy Council to determine when intervention is necessary. In fact, I can't even see why you'd need a judge: this isn't a point of legal contention and Parliament can intervene at its discretion. There's no body of law detailing criteria for this from which a judge could even begin to work.

I think you are misunderstanding my point. A Parliamentary act is past, another Parliamentary Act is passed which contradicts it. This happens alot and isn't particularly unusual when you think about the complexity of the law. A judge has to decide what is the correct interpretation of the law. There are issues of priority, vires, consitutional commitments, treaty obligations etc etc etc in this which can effect the judges decision about what legislation means and which one has priority/relevence. In the Isle of Man a Manx judge is responsible for doing that. If the vires/consitutionality of a bill was uncertain it would eventually be weighed in a court. IE someone refusing to carry an ID card ending up before the Beak!

 

I can remember a long time ago having an argument/discussion with a lawyer who was convinced that a Bill of Rights or constitution wasn't possible in the UK as parilamentary soverignty couldn't be bound. I asked hypothetically what if Parliament passed a constitutional bill which required a super majority in order for it to be changed - a later parliament passed, with only a standard majority, a bill which altered it - would that later bill really alter the origninal constitutional bill or not. His reply that it was up to the legal system to interpret the law and decide whether the new bill had vires or not. I am applying that analogy to the situation where the UK passes an act which the Tynwald says it has no right to do so. Who will then decide what is the law or not - the judges!

 

This was a long time ago, but the studies I've done in legal theory and Chinese Law seem to show that at the first order this interpretation was correct. Laws are passed by Parliaments but applied by courts - in China under the guidance of the Chinese Communist Party!

[VinnieK]

I think you are misunderstanding my point. A Parliamentary act is past, another Parliamentary Act is passed which contradicts it. This happens alot and isn't particularly unusual when you think about the complexity of the law. A judge has to decide what is the correct interpretation of the law. There are issues of priority, vires, consitutional commitments, treaty obligations etc etc etc in this which can effect the judges decision about what legislation means and which one has priority/relevence. In the Isle of Man a Manx judge is responsible for doing that.

 

Eh? The only contradiction we're looking at is if Tynwald passes or refuses to pass a piece of legislation that contradicts a piece of UK legislation designed explicitly to apply to the Isle of Man. There's no context or scope for interpretation here: In this instance Parliament is paramount and its legislation negates that of Tynwald. Interpretation doesn't even begin come into it, Tynwald's legislation is effectively repealled by the UK Parliament's act which contradicts it. Even if parliament passed an act that contradicted an earlier one, both applying to the Isle of Man, it would be UK law and a UK judge who would look at it.

 

I am applying that analogy to the situation where the UK passes an act which the Tynwald says it has no right to do so. Who will then decide what is the law or not - the judges!

 

And that's the basis of your mistake. Tynwald has no say in this, it has no legal power to say that the UK has no right to pass a specific act that applies to the Island (The right of the UK to legislate for the Island against its wishes, regardless of the issue at hand is well established). It can make its objections known, and it can appeal to the Privy council, but it can't obstruct UK legislation in the way you're suggesting. The judges don't even get a look in because there's no dispute in the first place: Tynwald's objections carry zero legal or constitutional weight.

[cheeky boy]

Probably because we already have them in the form of our driving licence, coupled with the fact that to get on and off the island these days requires a passport to get the tickets

WRONG! You do NOT need a passport to buy a ticket to or from the Isle of Man.

 

Where did you get that idea from?

 

 

Every time I have checked in at Ronaldsway I have needed to show my passport to get a boarding card

[Chinahand]

There's the monarch, the monarch rules via the Privy Council. The Privy council is constitutionally independent of the UK - governing the UK is one segement of its job - technically the UK Cabinet is a commitee of the Privy Council, but the Privy council also has the job of governing Canada, Australia, parts of the Caribean etc etc - all of these jobs are also segmented off to Governor Generals, sub commitees etc etc.

Sorry to disabuse you but the role of the Privy Council in Australian affairs was finally severed by the Australia Acts 1986. There is no right of appeal to the Privy Council from Australia and the Queen is head of state in her capacity as Queen of Australia not Queen of the UK.

 

Appeals from Australian courts to the Privy Council were initially possible, however the Privy Council (Limitation of Appeals) Act 1968 closed off all appeals to the Privy Council in matters involving federal legislation, and the Privy Council (Appeals from the High Court) Act 1975 closed almost all routes of appeal from the High Court. The Australia Act 1986 eliminated appeals from state Supreme Courts to the Privy Council. Appeals from the High Court to the Privy Council are now only theoretically possible in inter se matters with leave of the High Court under section 74 of the Constitution; however the High Court has indicated it will not grant such leave in the future.

 

In other words Australia told the Privy Council to politely go away as it was not needed.

I don't think that alters much - cos who gave that Bill Royal Assent - the Governor - who is what? An agent of the Privy Council.

 

There is a continually changing relationship between these bodies - earlier Australia had used the Privy Council as its final court of appeal - it then set up its own Supreme Court approved by the Monarch (via the Privy Council, via the Governor etc etc) and passed those powers to it. The UK is currently doing something approximately similar with its own Supreme Court moving out of the House of Lords - who'll give assent to this - The Queen - in Council!

[cheeky boy]

[HMG Home Office no longer has responsibility for Crown Dependencies. They now fall under the remit of the Ministry of Justice.

 

 

Headed by Judge Nutmeg and his kangaroo court