In a post that appeared earlier on his blog, Professor Peter Edge explains the possible next steps in the controversy about the Bishop of Sodor & Man’s vote in the Legislative Council.

After debating the Bill on 23 and 30 April 2024, the Isle of Man Constitution Bill, which would remove the Lord Bishop’s vote while retaining her place on the Legislative Council in Tynwald, passed the third reading in the House of Keys by 14 votes to 9. The Legislative Council will begin considering it on 11 June 2024.

It is not necessarily going to be passed by the Council. The view of the Keys was to some extent presaged by the grant of permission to initiate this Private Bill – a consent required only by the chamber in which the Bill is introduced. In that vote, a bare majority of 13 MHKs gave permission for the Bill to be introduced, with 11 against. As might be expected, changes in position on this simply drafted Bill were marginal. Mr Cannan, who had voted against introducing the Bill, was absent for the third reading vote. Mr Johnston, who had voted against introducing the Bill, supported it at the third reading.

The closest presaging for the Legislative Council is the 2018 vote in Tynwald on the Third Report of the Select Committee of Tynwald. This Report recommended that the Lord Bishop should retain both a seat and a vote in the Legislative Council and Tynwald. An amendment which would have proposed removing the vote, but not the seat, was rejected 11 to 13 by the Keys, and 3 to 5 by the Council. In the 2018 Council, Mr Cretney, Mrs Poole-Wilson and Mr Turner supported removing the vote; while Mr Anderson, Mr Coleman, Mr Corkish, Mr Crookall and Mr Henderson did not. The Lord Bishop was present at the sitting, voted on earlier business, and spoke on this issue; but had left the chamber before this vote was called. Apart from perhaps setting a precedent for the conduct of the new Lord Bishop, if a member of the Legislative Council while removal of her vote is under consideration, this is not very useful. Of the 2018 Council, none of those who supported removing the vote remain in June 2024; while only Mr Henderson remains of those who opposed this change.

Nonetheless, the Council may reject this change. Can the House of Keys override such a rejection?

The short answer is yes. If the Legislative Council has not passed a Bill within 12 sitting months of it being sent to the Keys (for the details of the timing, see the Constitution Act 2006 s.1(1)), the Keys may pass a motion by a special majority of 17 of the 24, which means that the consent of the Legislative Council is not needed for the Bill, either as a separate Branch or in Tynwald Court.

It is striking that, since 1961, the legal powers of the Keys to override the Council and have legislation passed without the Council’s consent have tended to focus on constitutional issues. Before 2006, the Council would make a final vote on a piece of legislation knowing that the Keys had overridden it, and we see this knowledge leading the Council to pass legislation it did not support – most clearly in relation to the Isle of Man Constitution Amendment Act 1965. In 2017 the post-2006 override, which did not allow this, was used to pass the Council of Ministers (Amendment) Act 2018, which removed the Legislative Council from the appointment and removal of the Council of Ministers.

So we have precedents of the Council refusing to pass a piece of legislation affecting the composition and powers of itself, and then the override being either used or bound to be used by the Keys to override this objection. I think this has two implications.

Firstly, the way the override works gives priority to the directly elected Keys but allows the Council both to delay (for around 12 months) and to require a special majority to proceed without their consent. Members of the Council who objected to the content of this Bill might, if the Council had an absolute veto, have acquiesced to it rather than block the democratically elected Keys. They may feel more justified in rejecting a constitutional Bill from the Keys on the basis that it should be reflected upon and, given it does not command support in the Council, requires a special majority.

Secondly, if the Bill is rejected, the override allows the Keys, after a statutory period of reflection, to proceed with the legislation alone, following a motion with the support of 17 MHKs. The 14 MHKs who voted in favour of the Bill passing the Keys is some way short of this supermajority. Does this mean the Bill will fail if rejected by the Council? Possibly, but another possibility is that three MHKs who were against the Bill might support the override on constitutional grounds: that is, thinking it right that the Council should be able to delay and demand further reflection by the Keys on this sort of legislation, but also thinking that the will of the majority of the Keys should prevail.

It is not perhaps the most likely outcome, but if we do have the Bill become law through use of the Keys’ override, it should be viewed as bicameralism working through different parts of Tynwald exercising their duties conscientiously rather than as conflict and a failure in the legislative process.

Peter Edge

]Cite this article as: Peter Edge, “Isle of Man: Bishop’s vote Bill to go to Legislative Council”, 24 May 2023, https://lawandreligionuk.com/2024/05/24/isle-of-man-bishops-vote-bill-to-go-to-legislative-council/.]