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The Dog In The Night-Time

Paul Matthews

“‘Is there any other point to which you would wish to draw my attention?’

‘To the curious incident of the dog in the night-time.’

‘The dog did nothing in the night-time.’

‘That was the curious incident,’ remarked Sherlock Holmes.”

Sir Arthur Conan Doyle, Silver Blaze, fromThe Memoirs of Sherlock Holmes      

Readers will recall the saga of McGonnell v United Kingdom, the ‘case of the Guernsey Bailiff.’  In October 1998 the European Commission on Human Rights expressed its opinion in the case, that there had been a breach of article 6(1) of the Convention, on the basis that McGonnell had not had a hearing (of his planning appeal) by an ‘independent and impartial tribunal’[1]  Following this, the European Court of Human Rights on 8 February 2000 delivered judgment in the case,[2] confirming that there had been a violation of article 6(1), although seemingly on narrower grounds than the Commission had found.  A detailed summary note of the facts and the decision may be found elsewhere in this issue of the Review.[3]  The purpose of this note is to draw attention to some of the curious features of the case, and to consider its possible impact, both in Jersey and elsewhere. 

The Bailiff of Guernsey is president of the States of Election, president of the States of Deliberation, president of the Royal Court, president of the Court of Appeal and Head of the Administration.[4] He is chairman of four States committees (the Appointments Board, the Emergency Council, the Legislation Committee and the Rules of Procedure Committee).   He is also a channel of communication between the island authorities and the UK authorities.  Whilst this is not identical to the position of the Bailiff of Jersey, it shows a remarkable degree of similarity.[5]   The European Commission on Human Rights declared McGonnell’s application partly admissible in January 1998, and then, in October 1998, by 25 votes to 5, expressed the opinion that there had been a violation of article 6(1) of the Convention.   The Court relied on the fact that the Bailiff had in 1990 presided over the States of Deliberation at the adoption of the planning rules which were being applied in the present case, and then in 1995 presided over the Royal Court in the determination of the applicant’s planning appeal.  The Court reasoned in this way:

‘With particular respect to his presiding, as Deputy Bailiff, over the States of Deliberation in 1990, the Court considers that any direct involvement in the passage of legislation, or of executive rules, is likely to be sufficient to cast doubt on the judicial impartiality of a person subsequently called on to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue.’

The Court concluded:

‘That the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6[6] was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case,[7] the applicant’s planning appeal.  The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6.  That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court...’

Accordingly it can be seen that it is not necessary to prove that the tribunal concerned was not independent and impartial.  It is sufficient to show that there are circumstances ‘casting doubt’ on impartiality, or that there are ‘legitimate grounds for fearing’ that the Court may be influenced by what happened at an earlier stage.

The British judge who took part in the hearing, Sir John Laws,[8] added a few words of his own,

‘to emphasise that the only objective basis upon which, upon the facts of this case, a violation of article 6(1) may properly be found depends in my view entirely upon the fact that the Bailiff who presided over the Royal Court in the legal proceedings giving rise to this case presided also (as Deputy Bailiff) over the States of Deliberation in 1990 when DDP6 was adopted... Where there is no question of actual bias, our task under article 6(1) must be to determine whether the reasonable bystander - a fully informed layman who has no axe to grind - would on objective grounds fear that the Royal Court lacks independence and impartiality.  I am clear that but for the coincidence of the Bailiff’s presidency over the States in 1990, and over the Royal Court in 1995, there are no objective grounds whatsoever.’

The judgment is a relief to the UK Government, which apparently feared that the Court might hold that article 6 prevented a member of the legislature or executive from sitting in a judicial capacity at all, on the grounds that the courts must be independent from the other branches of government.  Earlier case law of the ECHR (not followed in this case) had so held.[9]  Lord Irvine has now apparently stated his intention not to sit in cases concerning legislation in which he has been concerned (whether in government or in opposition).  But, as we shall see, this may not be enough.

What is curious about this judgment is that, although article 6(1) guarantees two distinct features of the tribunal, namely that it should be both independent and impartial, this decision appears to run them together.  The independence of the tribunal (from the parties, from government) is not necessarily the same as its impartiality.  A tribunal could be independent, but not impartial, or vice versa.  The Court’s caselaw distinguishes two kinds of impartiality, subjective and objective.[10]  Independence and objective impartiality are linked[11], and they will often overlap.  Where impartiality and independence differ is in relation to subjective impartiality, ie actual bias.  This must be proved[12].  Of course, there was no suggestion of this in the present case.  But the test for objective impartiality is less strict, and requires only ‘ascertainable facts which may raise doubts as to [the judge’s] impartiality’.[13]  The Court in the present case found such facts, in that the judge had taken part in the legislative process that led to the rules in question, even though he did not speak or vote either for or against the proposal.

What effect will this decision have in Jersey?  It appears to mean that where the Bailiff, or Deputy Bailiff, presides over the adoption by the States of particular legislation, that person must not take part in any judicial proceedings on that legislation.  The same applies when the Superior Number of the Royal Court makes rules of court.  In any question subsequently arising as to the interpretation of those rules, any member of the Superior Number of the Royal Court involved in the making of the rules must not take part in the judicial proceedings.  Could it affect others?  What about the Attorney General or Solicitor General who attended a debate on particular legislation many years before, and is now, as Bailiff or Deputy Bailiff, asked to preside over legal proceedings which involve issues on such legislation?  What about any other member of the States who was in attendance when legislation was adopted (even if not speaking or voting) and who has now become a Jurat, and is asked to sit on a case involving that legislation?  Will attendance records of States’ sittings stretching back over many years now become valuable weapons in the litigation lawyer’s armoury?

Similar problems arise in England.  The Lord Chancellor is the obvious example, but by no means the only one.  No Crown Court Recorder who is also or was once a Member of Parliament may adjudicate on cases involving legislation where he has attended the debate, even if he did not speak or vote.  No judge who was a member of the Supreme Court Rules Committee which made the new Civil Procedure Rules (whether or not he was then a judge) may adjudicate on any case involving the new Civil Procedure Rules.  The list goes on.

And the curious incident of the dog in the night time?  Why, in all this legislative activity the Guernsey Bailiff himself did ...nothing.  He said nothing on either side of the argument, and did not vote.  But he is nonetheless to be treated as a judicial imbecile, incapable of reaching an impartial and independent decision.  It is now too late for Lord Irvine. In Britain the murder is done, and he will pay the price in due course.[14]  Jersey, however, still has time to reflect,[15] before admitting the Trojan horse within the walls of its domestic law.

Paul Matthews is a solicitor of the Supreme Court of England and Wales and a consultant with the firm of Withers, 12, Gough Square, London, EC4A 3DE.