Power Lost To Westminster?

[Skeddan]

What rubbish. Skedden why do you insist on arguing purely on the basis of obscure technicalities?

triskelion – you are now resorting to the old game of trying to trivialise anything that challenges your own opinion. What you term “obscure technicalities” are Magna Carta and Statute Law. However you seem to think that such “technicalities” shouldn’t get in the way of your own ideas about the constitutional relationship - with anything against your opinion being roundly dismissed out of hand as 'rubbish'. The reason I insist on arguing on the basis of laws in that it is on that basis that the question would ultimately be determined.

 

The only example in early modern and modern Manx history of legislation being imposed on the Island from the UK Government and Parliament is a mere telegraphy act. When where these big confrontations with Westminster? They never happened. ….Regardless of any technical powers over the Island, UK powers to legislate for the Island are effectively an irrelevance

Did you really miss the point about caving in and accepting measures voluntarily rather than confront Westminster? The presumed ‘technical powers’ are not effectively an irrelevance when the threat this will be imposed unilaterally hangs over decisions.

 

To give an analogy, in the 18th century, a lot of Manx seamen volunteered for service in the Royal Navy. This wasn’t because of a free choice, but because the alternative was being press-ganged, and volunteers were given preferential treatment over pressed-ganged men. The fact they volunteered does not mean that the technical powers to press-gang were ‘effectively an irrelevance’.

 

If you want examples where the threat of imposing measures by Westminster has been used, consider the changes in laws about homosexuality and birching which you mention. More recently the issue of delimitation of powers arose over fishing rights, with Phil Gawne meekly claiming to be powerless to impose protections. The history of the ‘Imperial Contribution’, now a ‘defence contribution’ offers another example.

 

If the Island was clearly being oppressed there might actually be a debate here, but you are manufactuering one by placing undue weight to things that have long faded into the obscurity you seem so determined to elevate them from.

The constitutional relationship is important irrespective of whether or not the Island is ‘being oppressed’. As for this having ‘long faded into obscurity’, the relevant legislation is relatively recent – most of it more so that the Act of Settlement, the Act of Union with Scotland, and certainly more so than Magna Carta (another merely irrelevant obscure technicality in your view?)

 

Millions of pounds of tax payers money is paid out every year from IoM to the UK for ‘defence contribution’ – why? Because the UK is responsible for IoM’s defence? Why is this? Some treaty? Would the UK no longer have this responsibility if the money wasn’t paid? Perhaps there is no reason to pay out millions every year. So how is this justified? On the basis of the ‘constitutional relationship’? In other words, the reasons are obscure. Fiscal responsibility alone would justify some due diligence in examining the question, and democratic accountability should mean that the constitutional relationship should be clear and explicit to the general public – not withheld and shrouded in ‘convenient’ vagueness.

 

If you’re not interested in the constitutional relationship, fine, but really it seems you want to silence any serious examination of the question as you are unable to substantiate your own opinions on the matter.

[Cronky]

From the website of the Chief Secretary's Office:

 

The Government Code Page 13

 

Part 4 - Procedure for Dealing with the Extension of United Kingdom

Legislation to the Isle of Man by Order in Council

Introduction

4.1 This part deals with Orders in Council which have a special procedure which differs

from subordinate legislation as indicated below.

Acts of Parliament which can be extended to the Isle of Man

4.2 Acts of Parliament which are modified in their application to the Isle of Man fall into

two categories –

(a) Acts which contain a "permissive extension" provision, e.g. -

Her Majesty may by Order in Council direct that any provisions of this Act

specified in the Order shall extend to the Isle of Man with such exceptions

adaptations and modifications as may be so specified.

(b) Acts which contain an "automatic extension" provision, e.g. -

This Act extends to the Isle of Man, subject to such exceptions,

adaptations and modifications as Her Majesty, may specify by Order in

Council.

4.3 Acts in the first class do not extend to the Island unless and until an Order in

Council so provides. Acts in the second class extend to the Island without any Order

in Council. In both cases the Order in Council will modify or exclude provisions

which are not in terms applicable to the Island, to ensure that the Act works

properly in the Island.ment to the extension of the Act to the Island.

 

As I read this the UK can simply write an 'automatic extension' provision to an Act of Parliament making the 'Order in Council' compulsory.

 

Anyone care to differ?

[Skeddan]

Cronky - I see why you would think this, but IMO an Act of Parliament with an 'automatic extension' doesn't make an Order in Council 'compulsory'. As noted in 4.2(b) which you quote, the wording of such Acts allows Queen in Council full discretion to modify or even totally negate the provisions of the Act insofar as they might apply to IoM - hence Parliament is proposing rather than obliging. In the absence of any such modification or negation by OiC, it can be construed that this legislation is applied to IoM as it stands with the consent and authority of Queen in Council (when the Act receives royal assent - by an OiC).

 

This goes back to the earlier point that the powers to impose legislation on IoM (as well as manage it's international relations) are part of the Crown's residual or prerogative powers. The authority for exercising these powers is Queen in Council rather than Queen in Parliament. Hence even with an Act of Parliament with 'automatic extension', it is not Parliament exercising legislative authority over IoM, but Queen in Council.

 

Also it's worth noting that since these are prerogative powers, an OiC will have legislative authority in IoM without the need for any Act of Parliament at all. Instead it is the absence of any statutory limitation set by Parliament which enables Queen in Council to make laws for IoM, and to do so without authority or consent from Parliament (or Tynwald). On the other hand, an Act of Parliament or Tynwald will only come into force in IoM if it has the approval and authority of Queen in Council - which is entirely discretionary. Queen in Council may also overturn an Act of Tynwald by unilaterally legislating for its repeal or countermanding it. Neither of the Houses of Parliament are even allowed to even debate matters which impinge on the royal prerogative without first obtaining consent from Queen in Council (e.g. a bill which obliges the Crown to apply the legislation to IoM, or a bill limiting the Crown's legislative power over IoM).

 

What this boils down to is that the Crown - not Parliament - has ultimate legislative power over IoM in much the same way as in an absolute monarchy.

[Cronky]

Cheers for all that.

 

I will make two comments:

 

1. It is a highly complicated relationship.

 

2. It is also highly 'opaque' !

[Chinahand]

What this boils down to is that the Crown - not Parliament - has ultimate legislative power over IoM in much the same way as in an absolute monarchy.

This interests me - I in my limited way always thought the Monarch had soverignty - I think this is what you call Personal Union - but had decided to pass powers of legislation - on the Royal Perogative - down to either Tynwald or the UK Parliament - in a rough split of Tynwald domestic, UK Parliament international, but also good order.

 

The Monarch has the perogative to say up yours to both parliaments when they are concerned with the IOM and can do what ever "in Council" though obviously doing so would be constitutionally extreme!

 

Is this what you are also saying - this seems to be very different from your earlier posts about the UK being an occupying power, or am I missing something.

 

We are an "at-will" democracy with the Monarch having the power to play einnie meannie minnie mo with who gets the right to legislate for the Island - or no one as she's in council - heck that sounds like a Blackadder II episode - "No Edmond - Queenies in Council!"

[Skeddan]

Chinahand – you suggest that the Crown’s legislative authority over IoM under its prerogative powers has been passed down to Parliament and Tynwald. I think this can be shown to be mistaken.

 

Prerogative powers can be superseded by statute law; but once statutory authority over that area has been conceded to Parliament, the Crown loses that residual power (unless the statute explicitly preserves the Crown’s power in that area). Once lost, it is gone. Had the Crown passed down these powers, it would have lost this prerogative power – which clearly it hasn’t as the authority of Queen in Council is needed to extend an Act of Parliament to IoM. The same is true of local legislatures - once the legislative competence conceeded in an area, the Crown can no longer 'reclaim' its superseded residual powers in that territory.

 

Nevertheless I’d go along with your description of this as an “at-will” democracy. i.e. the Crown may follow the advice and proposals of Tynwald and Parliament at its discretion, but is not in any way compelled to do so. As you suggest, it also goes a bit further than this - the Crown can also legislate without Parliament or Tynwald having any role or say in the matter whatsoever (though constitutionally extreme, it would still be constitutional – at least within certain, as yet unspecified, limits). In that sense IoM is more akin to an absolute monarchy rather than a parliamentary democracy or even merely an “at will” democracy. (But of course one has to take into account the extent of these unspecified constitutional limits – which may perhaps be so extremely limited as to be virtually non-existent, or perhaps as extremely broad and extensive as the Crown’s powers over the Chagos Islands).

 

In any case so far none of this addresses how the Crown obtained these legislative powers in the first place. That’s a further question. However it is an important one since the answer is necessary to determine the extent of the constitutional limits.

 

There are a number of possibilities that might fit and explain the basis for these powers – Personal Union; Administering Power; territory obtained by cession, conquest, settlement; territory under military occupation; territory held in trust etc. etc. Arguments for and against each possible ‘candidate’ explanation then need to be considered and untenable explanations eliminated.

 

“am I missing something” – yes – this further step which gets to answers about the basis on which the Crown has these powers.

 

Here I am just clarifying that, within as yet unspecified limits, the Crown has power to impose legislation on IoM by authority of Queen in Council, and that this is based on residual or prerogative powers. That by itself should be non-contentious, and is supported by various authorities - including Kilbrandon and other official statements. It is when the nature of this prerogative power is put in context and examined more closely that one gets to the sticky questions about how this power might have been obtained. (including reasons why the notion this is a Personal Union can be rejected).

[Cronky]

Now here's a question:

 

Can the UK enforce Statutory Instruments upon the Isle of Man?

[Skeddan]

Now here's a question:

 

Can the UK enforce Statutory Instruments upon the Isle of Man?

I don't think there's any reason to suppose legislation extending to IoM wouldn't be enforced (unless it was demonstrably unconstitutional - e.g. deporting the entire population as per Chagos Islands, crimes against humanity or the like). Manx Courts and police (like other public officials) are servants of the Crown, and it would be their duty to enforce the law. I wouldn't think there'd be much danger of a revolt against the Crown by the Manx constabulary and judiciary! (And, if by any chance this did happen, it wouldn't take too much for the UK to restore 'good government' and law and order).

 

As an example, I don't see any reason why the Crown couldn't appropriate the new runway when it's built together with the rest of the airport, and use this as a military airforce base (perhaps leasing it to the US, who could also use this as a European Guantanamo Bay). This seems fully within its powers and entirely constitutional (if a little unfair and somewhat inconvenient). It could also be enforced by MoD police (armed with MP7s and X26 Tasers). The few protesters would probably be less effective than the Greenham Common mob. What do you think the Manx judiciary and constabulary might say about this?

 

Incidentally, on this subject of enforcement, it is worth noting that prior to 1765, the UK had no power whatsoever in IoM and this was entirely out of its jurisdiction. Even writs such as habeas corpus were of no authority. Some over-zealous Royal Navy officers who made the mistake of trying to carry out their customs enforcement duties in Manx territorial waters found they were out of their jurisdiction and had no authority to detain vessels there - they were prompty arrested and imprisoned by the Manx authorities (and may well have been lucky not to have been had up for piracy).