HTML Transcription © F.Coakley , 2008
[From How the IoM is governed, 1944]
The Legislative Council is successor to a body called "the Lord's council" and "the Lord's officers," which is recorded as having been in existence in the year 1422. It is a branch of the Legislature, that is to say, it has equal powers with the other branch, the House of Keys, in the making of laws; and it is an executive whom the Governor consults, or is, entitled to consult, in matters of administraticn.
Originally the Council was an executive only. Its duties were defined in the following order issued by the Lord's commissioners in 1561:
"The captain, receivers, clerk of the rolls, and water bailiff, once in a month at least, to be in the Exchequer at the Castle of Rushen; and there to consult of my Lord his causes and affairs of the Isle, for the commonwealth's well governance, and well keeping of the Isle and Houses."
"Captain" is another name for governor, and "houses" another name for the castles.
At that time legislation was not as we know it now. It consisted of declarations of law as it was already supposed to be, and the application of such law to particular cases. The application often created precedents, which were ordered to be set down in the records, and had the force of law in the same way as judges' interpretations have at the present time.
The idea of "inventing" new laws is not formally expressed in the Manx records before 1583. And the persons who, "gave for law" this, that, or the other were the Deemsters and the Keys. They did so, as was commanded by Sir John Stanley in 1422, when great matters and high points were in doubt, and the Governor or any of the Council needed advice.
The "inventing" of laws gradually became constant, and the Council were recognised as part of the law-making body at the beginning of the seventeenth century. Since that time they have been the Isle of Man's Upper House, its second chamber, with some small part of the duties of a Cabinet. They could be consulted, and sometimes were, on the desirability of introducing certain legislation. They were, at the least, a panel from whom the Governor might choose advisers in matters of administration. In his oath, which Earl Granville took in 1937, he undertakes, "when I think it is necessary," to "call together the Council of this Isle, or so many as shall be present within the same, and advise with them in any matter that shall concern the state and Government thereof." Nevertheless it was considered necessary in 1921 to introduce a Bill constituting the whole Legislative Council the executive council, and that Bill was defeated.
The Deemsters are not thought to have been members of the Council in the days when its duties were purely executive. They were not among the officers who met monthly in the Court of Exchequer, and Sir John Stanley's command that the Governor or the Council "take Deemsters to, them," with the advice of the Keys, when great matters or high points were in dispute, implies that the Deemsters did not sit with the officers. But they were certainly taking part in administration by the beginning of the eighteenth century, and individual deemsters were among the persons appointed to deputise for the Governor when he was away. Their oath does not call upon them to advise the Governor, and there was a divergence of opinion on their having executive functions when a British Government commission took evidence in 1791. The prerogative, perhaps the obligation, of acting as Deputy-Governor is claimed to belong to the First Deemster now. Sir James Gell, the late Clerk of the Rolls Mr T. Kneen, and within the last ten years Deemster LaMothe. will be remembered as having had temporary charge of the Island's government. The commission of the present Governor, we are informed, provides that the person appointed Deputy-Governor is to be the First Deemster, or if he is not available, the Second Deemster. Hitherto there had been a direct commission to the Deputy-Governor on each occasion. In the Dominions the Lord Chief Justice seems to assume the duties of Governor-General when the office lies vacant. This has just happened in South Africa, following the death of Sir Patrick Duncan.
In legislation, the position of the Deemsters has always been definite. They, were the original spokesmen and repositories of the law, and the Keys. the "wisest" or the "elders" of the land, were called in to assist them. The preamble to all Bills begins, "Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lieutenant-Governor, Council, Deemsters, and Keys," and the Deemsters sign the Bills on a different side of the sheet from that used oy other members,of the Council. In many Acts passed in the seventeenth century, the expression used is "The Officers, Deemsters, and Keys," or "The Officers, Council, Deemsters, and Keys," implying that the Deemsters were not among "the officers" and were considered as distinct from the Council.
"Without the Deemsters' assent," the Macdonnell Commission reported in 1911, "no Act of Tynwald is valid." Deemster Callow, in a memorandum placed before that commission, put the case more mildly; his phrasing is, "The Acts of Tynwald to this date declare that they are passed by the consent of the Deemsters, who alone have the right to proclaim the laws on Tynwald Hill in immemorial custom." The suggestion that no law can be passed unless the Deemsters sign it, or assent to it, has been vigorously ridiculed; pushed to its logical conclusion, it would mean that two individuals in the Legislature had the right to veto a measure carried by the majority of the branch in which they themselves sit
The House of Keys has never declared for the removal of the Deemsters from the Legislature, though individual members have expressed that opinion as well as other "advanced reformers"-we use an expression from the Macdonnell Commission. The Commission declined to accept that view, on the ground that the Deemsters occupied in Manx constitutional history the position of an "estate of the realm"; that it was impossible otherwise to secure as ex officio members of the Legislature men of trained intelligence; and that there was a strong body of moderate opinion in favour of retaining the judicial element in the Council. "We are agreed therefore," said the Commission, "in retaining the Deemsters on the Council, at all events far the present."
Lord Macdonnell and his colleagues did feel that no judge should be a member of an executive committee or board of Tynwald. "These boards are cocasionally involved in litigation, and it is obviously undesirable that a judge should take part in any proceedings which may possibly come before the Courts." The Home Secretary adopted this recommendation, but the clause in the Isle of Man Constitution Bill of 1919 which embodied it was rejected by the Council. Deemster Stevenson Moore continued to be chairman of the Local Government Board, and Deemster Callow of the Fisheries Board. Deemster LaMothe, who was appointed after the period of the constitutional changes, never sat on a committee of Tynwald; Deemster Farrant is chairman of the War Pensions Committee and of the Museum Trustees. These committees are only partially constituted of members of Tynwald.
Deemster Cowley, on the other hand, is chairman of the War Committee of Tynwald, the Public Works Commission, and the committee which gives assistance to persons in distressed circumstances caused by the war. These are temporary bodies, but, as we have previously stated, the appointment of the War Committee of Tynwald was hailed as a great step towards permanent selfgovernment, and the Public Works Commission is likely to cominue in existence as long as public works are required or the Legislature concerns itself with the provision of employment. The War Committee has no statutory powers, and could scarcely be involved in litigation; on the other hand, none of the statutory committees has such a wide scope, deals with matters of such high consequence, or is so likely to become entangled in controversy. Still, the committee wa set up during a period of national emergency, and the choice of its chairman may not be considered a constitutional precedent.
The Deemsters have in recent years been frequently appointed chairmen of commissions of inquiry, and occasionally chairmen of arbitration tribunals in wage disputes It is not uncommon for the members of arbitration tribunals to 8 be irreconcilably divided, and to leave the decision to the chairman alone. Here again the English practice is followed; judges of the High Court (like Lord Sankey) have issued arbitration awards or given their names to recornmendations like those of the "Scott" and "Uthwatt" committees on town and country planning and the acquisition of land for public uses or public control.
Bishop Meryck, who was governor in 1577, declared that the Deemsters were elected by the people, and there is a record of a popular vote in the choice of Deemster in 1605. There is no such statement in the declarations of 1422. The Earl of Derby in 1535, forty years before this statement of Bishop Meryck's, referred to "my trusty officer in those parts Thomas Norris, late Deemster," and proceeded to arrange the widow's re-marriage. It will be appreciated that the Lord paid the Deemster a salary. If any of the Earls of Derby conceded to the people the right to choose the Deemster, this may have been in recognition of an ancient Norse democratic tradition. The "Law Speaker" in ancient Iceland was elected by the popularly-chosen Althing. Deemster Farrant, in his historical study "Mann," remarks that if ever the Manx Deemsters were elected like the Icelandic lawmen, this qualification has long since fallen into desuetude.
The Attorney-General does not appear among the officers who anciently formed the executive, but he is declared to be one of the Governor's advisers in James Chaloner's treatise in 1656. According to the same treatise, the Governor had the assistance of the Deemsters for matters of law. Names of Attorneys General appear from about that date in the signatures to Acts of Tynwald, showing that they were recognised as members of the Legislature. The British Attorney-General is a member of the House of Commons. It is obvious that in a House of 24 members there is no certainty that at any period an advocate would be among those elected to represent the people.
The Bishop signed the Acts of Tynwald in 1637, and from thence he appears to have been recognised as a member of the Lord's council, though not necessarily a member of the executive. It is sometimes said, and the statement has the authority of various students, including Sir Spencer Walpole in his "Land of Home Rule," that the Bishop sits in the Legislature as the last of the barons, those who held lands by the King's perpetual grant, with the right to let lands to tenants, and had power to hold courts in their own estates. The barons were certainly called into Tynwald during the presence of the King, and were required to do the King homage and show how they held their charters from him. They are referred to in connection with Tynwalds held during the visits of Sir John Stanley and of the fourth Earl, and (on one occasion only) during the residence in the Island of the seventh Earl. But that the Abbot of Furness, the Prior of St. Bede's, the Abbot of Bangor and Saul in Ireland, and still more the Prior of Whithorn in Scotland, who was the subject of a foreign king, ever had the right to assist in the making of Manx laws and in Manx administration, seems extremely improbable.
The Bishop sits in the Legislature, it may equally be held, as representing the Church. The "spiritualitie" were somewhat like an estate of the realm; they took part, together with but distinct from the "Commons," in the Tynwald ceremonies-on at least one occasion their opinion was taken as well as the opinion of the Keys-and when money was required for a special purpose, such as the military defence of the Island in the time of the English Civil War, they were assessed separately from the landholders. The Bishop's seat serves as a symbol of the association of the State with religion. A limited number of bishops sit in the Upper House of Great Britain, and, says one writer, "whether as barons or in their spiritual character has been a matter of dispute."
These must remain matters of speculation. There has been no suggestion from any organised body that the Bishop's seat in the Legislature should be abolished.
We have discussed the position of the Deemsters, the Attorney-General, and the Bishop, because they are the only official members who remain in the Council. Prior to 1919 the Council was wholly official; it consisted of the Clerk of the Rolls-which office is now amalgamated with that of First Deemster-the Deemsters, the AttorneyGeneral, the Receiver-General, the Bishop, the Archdeacon, and the Vicar-General, who is the Bishop's legal adviser. Originally the vicars-general were judges in the spiritual courts (whose business included the probate of wills), and they were clergymen. Their right to sit in the Legislature was sometimes recognised and sometimes denied.
In the Reform petition of 1907, the Keys demanded that the Archdeacon and Vicar-General should be removed from the Council-they did not demand the removal of the Receiver-General, but this came about-and that the majority of the Council should be directly elected by the people. The Macdonnell Commission recommended that the elective members should number four out of ten, and the choice should be made by the House of Keys.
"Should a well marked division on party lines become hereafter developed," the Macdonnell Commission said, "we would advise that the elections to the Council should be in the constituencies."
These recommendations were accepted by the Home Secretary and were carried into law. It was also enacted, upon the Commission's recommendation, that two non-official members should be appointed by the Governor.
Thus the composition of the Council 's as follows:
The Bishop, the two Deemsters, and the Attorney-General-four official members.
Two members nominated by the Governor, for a period of eight year, one to retire every fourth year.
Four members elected by the House of Keys for eight years, two to retire every fourth year.
The first gentlemen nominated by the Governor were Mr George Drinkwater. who had at one time held the office of Crown Receiver, and Mr R. B. Quirk, who nine years earlier had sat in the House of Keys.
In all the subsequent nominations, which happen to have been five, the Governor has selected a member of the then House of Keys.
The office of Receiver-General carries nothing with it but the chairmanship of the Harbour Board, and it has been urged that this Board should choose its chairman like the others. But when is 1866 the British Government put through the Act of Parliament which restored to the Manx Legislature, in a general way, the control of its finances, it retained its special interest in the harbours; it stipulated that a certain part of the Manx revenues must be set aside for harbour maintenance. The Receiver-General continues to be appointed by the Crown. It would obviously he inconvenient if the chairman of the Harbour Board was not present in Tynwald to explain the Board's policy, and since 1919 the Crown has appointed successively two gentlemen who, through being members of the Legislative Council, had continuity of office for at least eight years.
The demand is still made that the elected members of the Council should be a majority, that they should be chosen directly by the people, and that the Deemsters should not at the same time make laws and administer the laws in the courts. Early in 1943 ai series of resolutions to this effect was introduced by Mr Samuel Norris into the House of Keys. The House did not commit itself, but appointed a committee to report upon constitutional matters generally. A summary of the committee's recommendations, which on January 4th, 1944, were adopted by the House, will be found at the close of this booklet.
The Council must vote in favour before any Bill can become law, or any financial or administrative resolution is passed in Tynwald. Unlike the Upper House in Britain, they have equal powers with the people's representatives in matters of taxation and expenditure. We have not the information which would enable us to compare their powers with those of second chambers in the Dominions or the Colonies.
There is a tendency among members of the Council to regard their true function as the Macdonnell Commission regarded it, "moderating hasty legislative and executive ;action." Sometimes they have rejected Bills passed by the Keys, and sometimes, though expressing reluctance, they have taken the view that if the people's representatives have made up their minds finally, they will let the measure go through. The Isle of Man has nothing corresponding to the Parliament Act of 1910, by which, if a measure has been passed by the House of Commons unaltered in three separate sessions, it is presented for the Royal Assent without the consent of the Lords. The usual procedure when the Council differ with the Keys is that they ask for a conference, and a deputation from the Keys meets the whole Council and discusses the subject in private. If neither side will give way, then the Bill falls. It is possible, of course, for the Council not to wait till the clauses of a Bill are discussed, but to throw out the second reading and thus refuse to consider even the principle.
The most likely occasion for disagreement is a resolution in Tynwald, where the Council and the Keys vote at the same time. It is possible for a majority among ten persons to defeat a resolution carried unanimously among twenty-four. This could happen in any Upper House which possessed equality of voting with the Lower, but in the Isle of Man only four members of the Upper House are elected. This rule is not followed in the election of members of boards or committees. There, if the Council and Keys fail to agree, it is moved that both branches vote together.
It has sometimes been alleged, but has been hotly denied, that the official and nominated members of the Council are bound to vote according to the wishes of the Governor. "The odd rul prevailing in Crown colonies," says Sir Spencer Walpole, "under which members of the Council are required to vote with the Governor, has never been applied to this body." Governor Loch desired that it should; he held that before the executive introduced legislation, there should be some portion of the Legislature upon whose support it should rely. He suggested that certain members of the Council should be required to vote with the Governor, and-it is most interesting to discover this-that the Keys should be invited to send five members to discuss with him and the executive measures which he might deem it advisable to submit to the Legislature. There was a proposal at the same time that half the members of the Council should be unofficial. The Governor invited the observations of the Council members on these suggestions, and encountered a great deal of opposition. Deemster Drinkwater, in particular, resented the suggestion that a judge should be compelled to vote against his conscience, Governor Loch's period of office ceased just at this time-in 1881-82-and the proposals were not proceeded with.
It must be taken as constitutional fact, then, that all members of the Council are independent in their voting, and that if they chance to be unanimous against some standpoint of the Keys, it is because they are convinced that the Governor's standpoint is correct. Deernster Drinkwater, for example, opposed official proposals over and over again. The question was raised lately of whether members personally nominated by the Governor owe him a duty of constant support. The nominated member present denied emphatically that he was bound to vote as the Governor desired. "But," he added, "if I found myself in a position where my policy was in opposition to the Governor's, I should consider it my duty to give him back my appointment."
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