On course for a constitutional crisis?

On 17 April, the UK Government informed the Isle of Man Government that the UK’s Ministry of Justice was unable to recommend the Bill for Royal Assent at this time.. Whilst the UK’s statement was clear that it was not ‘disallowing Royal Assent’, it has effectively paused the progression of this legislation and created a whole host of questions about what happens next.

Whether you agree with the Assisted Dying Bill or not, this is an issue of the UK Government procedure and process and one which could set the Isle of Man on course for a potential constitutional crisis.

What has happened?

The UK Government (through the Lord Chancellor David Lammy) has recommended that Royal Assent not be given at this time due to concerns around independent monitoring, coercion and informed consent, stating that due to this the bill did not meet the requirements under the European Convention on Human Rights.

The Manx Government had said that these safeguards would be included in the secondary legislation of the bill. The UK wants to see them in primary legislation (meaning in the actual body of the Act) rather than in secondary legislation (these are supporting documents which often are used to fill in the details and do not need Royal Assent or to be voted on).

What went wrong?

This is a massive failure in procedure by the UK and very much the one thing the MOJ and Isle of Man Government didn’t want to happen. This legislation has been through rounds of domestic scrutiny, drafting and revision, and the UK government was likely kept in the loop on this contentious legislation throughout the drafting process.

Given that, it is wild that it has taken almost three years since the bill was introduced and a year since Tynwald passed the legislation for the UK to give its opinion. Had these issues been raised sooner, we likely wouldn't be in this situation.

How can the UK do this?

As we have explained before, the Isle of Man is not part of the UK; but as a self-governing Crown Dependency, the UK is responsible for the ‘good government’ of the Isle of Man and has a responsibility to ensure that legislation passed by Tynwald complies with international law.

This is done on the advice of UK Privy Counsellors - a group of people in the UK including members of the government, judges, and bishops. This list includes the British Lord Chancellor David Lammy (their Minister of Justice), who recommends whether Royal Assent be granted. It is important to note that no Manx politicians, office holders, or officials sit on this council, and what is discussed behind those closed doors remains a secret.

The UK serves as a signatory to Treaties and international conventions for the Isle of Man (as generally only sovereign states - fully independent countries -can sign up to international agreements). The ECHR is one of these treaties.

What is the ECHR?

There is a lot of confusion about what the ECHR is. It is distinct and separate from the European Union and its institutions.

The European Convention on Human Rights is an international agreement which was developed and adopted in 1950 which is designed to protect rights and political freedoms in Europe. It's called the ECHR because it is applied to 46 countries in Europe. It covers good things things like a right to life, freedom from torture and slavery, and the right to a fair trial.

It was developed by the Council of Europe (which is not a part of the EU), of which the UK is a member, and Winston Churchill was pretty influential in setting the whole thing in motion. It also established the European Court of Human Rights, which hears cases from people who claim the ECHR has been breached.

The ECHR was applied to the Isle of Man in 1953, and many of the principles were put into domestic law in 2001 with the passing of the Isle of Man’s Human Rights Act.

This isn't the Isle of Man's first run-in with the ECHR. It was central to issues like banning the birch and the legalisation of homosexuality.

What happens now?

Whilst this rejection is not unprecedented in modern Manx politics, it is very rare and outside of the constitutional norms. The legislation will need to go back to Tynwald to have the safeguards added into the text through the form of amendments; however, how that will work remains unclear.

There isn’t a clear process for how this should be done, but from what we understand, it will likely need to go back to both the Keys and LegCo, with the amendments being voted on by both chambers.

We’ve reached out to an actual constitutional expert and some MHKs for their opinion and will update this blog once we hear back.

What we can be assured of is that it will be another delay, and with the Keys dissolving in the coming months ahead of the General Election, the fate of the Assisted Dying Bill remains up in the air with Alex Allinson admitting that the bill risks timing out - wild considering it was passed a full year and a half before the end of the session....

Why is this an issue?

This recommendation by the UK has the potential to create a constitutional crisis and has ramifications beyond the Assisted Dying Bill. By convention, the UK doesn’t often involve itself in Manx policy making; they don't have a mandate to do so. Generally, no one wants to test the unwritten bounds of our constitution because there is no process setting out what happens, and making solutions up on the hoof does not instill public confidence in the system, puts people at risk from poor policy and can lead to pretty awful outcomes which become the constitutional norm.

Worse than that, it just looks bad. This decision has laid bare the issues with the current constitutional set up and just how edge of desk Manx legislation is at the MOJ.

How is it possible that one of the most debated pieces of legislation in this sitting of Tynwald wasn’t looked at by the Civil Servants in the UK who exist to look at Manx legislation?

This failure has wasted Government’s time, Tynwald's time, and left people waiting for an answer on assisted dying in the lurch.

Whilst we note that opponents of the Bill are currently celebrating its rejection by the Ministry of Justice, we strongly believe this reaction is dangerously short-sighted. Cheering for this outcome risks normalising a dangerous precedent that fundamentally undermines how our constitutional relationship is intended to function. Political tides turn and by endorsing this kind of intervention simply because it aligns with your current views offers no protection when those exact same mechanisms are used against you.

Just because you are on the 'winning side' today does not mean you will be tomorrow.

What is clear is that the current situation needs to be resolved. The MOJ Crown Dependency Team desperately needs the resources to stop these failures from happening (that means more staff or staff who actually do their jobs), but ultimately we have to ask a much harder question: is our current constitutional set-up really working?