ONE of the enduring, if low key, questions that floats around the political ether from time to time is whether it is right for the Bailiff to retain his historic roles as chief justice, ‘speaker’ or presiding officer of the States, and the island’s civic head.

And it’s an issue given fresh interest with Sark’s decision – reluctantly – to separate their own Seneschal’s judge/speaker role.

While it has never satisfactorily been answered here – the ‘if it ain’t broke, don’t fix it’ approach has prevailed over the decades – Jersey has commissioned a formal review of the offices, which chairman Lord Carswell is expected to conclude by December.

As part of his research, the retired Lord of Appeal in Ordinary, invited Guernsey’s HM Procureur and HM Comptroller to make submissions to the Crown Officers Review panel, which they did so jointly and, perhaps not unexpectedly, put up a strong case for keeping things as they are with regard to their own responsibilities.

In particular, the 3,000 word submission sets out the various functions of the offices, stresses the independence and non-political nature of the advice given and emphasises that, on the odd occasion that they might arise, any conflicts of interest or confidentiality can be managed.

What it also does, probably unintentionally, is to highlight the wide-ranging influence they have over the island’s political process but with the absence of any elected input or effective scrutiny.

The key to this is the Law Officers’ primary duty being to the Crown. As Procureur Howard Roberts and Comptroller Richard McMahon put it, ‘The Crown in this context ordinarily means the Crown in right of the république of the Bailiwick of Guernsey. Even on a narrow construction, what we hold to be here in view is the collective governmental and civic institutions, established by and under the authority of the Monarch, for the governance of these islands, including the States of Guernsey and legislatures in the other islands, the Royal Court and other courts, the Lieutenant-Governor, parish authorities, and the Crown acting in and through the Privy Council.

‘A less structurally focused analysis might, especially when read in the context of our duties mentioned above to uphold the laws, rights and liberties of the islands, produce a more succinct assessment of our Crown responsibility as being simply to safeguard the public interest on behalf of the Monarch,’ they say.

And there’s the rub. Two men closeted in St James’s Chambers have to take it upon themselves to do what’s in your best interests on behalf of her majesty the Queen – and you do wonder how they do it.

They are at pains to say the monarch does not mean the political government of the UK. Fair enough. But it is unlikely that her majesty rings up from time to time and says, for instance, cut one’s subjects a bit of slack on Cobo gigs, would you?

Equally, if the primary duty of the Law Officers really is to uphold the rights and liberties of islanders, it might be argued that they do a pretty poor job of it, as evidenced by the torrent of legislation that pours out of St James’s directly impinging and restricting the rights and liberties of islanders and businesses.

Of far more concern, however, is where the Law Officers claim to have unrestricted authority to make policy, usually the province of elected members of the States.

Again, as they put it, ‘…we are only concerned directly with policy in those areas for which we have responsibility, particularly the development of the criminal law and criminal justice policy’.

So this vital area of policy – just what sort of judicial regime Guernsey wishes its citizens to live under – is the exclusive province of two men who are supposed in some way to safeguard the public interest on behalf of a monarch who has no input into the matter and in the absence of any steer from local or, apparently, UK politicians.

So are they subject to any scrutiny? Yes, of course, they say. It happens on the floor of the Assembly, through Public Accounts, the Scrutiny Committee and the Legislation Select Committee.

In reality, as the Wales Audit Office research showed, what’s put in front of the States is approved on the nod in 95% of cases and reference in the submission to Lord Carswell about the Legislation Select Committee is actively misleading.

Its function, as confirmed by its mandate, is simply to proof-read what’s put in front of members and to confirm that what has already been approved by the States will be enforced in the actual legislation.

Scrutiny, in the sense of critical observation or examination, is utterly absent and at no stage is any impact assessment made on the proposals or any thorough consideration given to whether the legislation is really needed.

Actually, it’s worse than that. The select committee is not properly constituted unless a Law Officer or Crown Advocate is present, presumably to make sure members don’t get a bit frisky and start asking the wrong sort of questions.

The submission also highlights one other aspect of the Law Officers’ influence – the fact that they also draft the legislation that they have proposed as part of the development of criminal law and criminal justice policy that they alone have decided is appropriate.

This appears to be a peculiarly Guernsey arrangement, as they say: ‘We acknowledge that the highly intellectual, specialist function of legislative drafting is dealt with in other ways both in Jersey and other jurisdictions…’

That being the case, there must be some significant reasons for it, yes? Well, possibly. In their view, there are clear, but unspecified, synergies and efficiencies of shared expertise and talents but, more importantly, it’s because they are all boys together.

As the submission has it: ‘…we value enormously the collegiate cohesion, and simply the camaraderie, to be derived from the co-location of this important function within the Law Officers’ Chambers’.

The real reason, of course, goes back to power and influence.

As part of the officers’ responsibility for the shadowy justice policy, they help steer their wishes through the departments and the States, sit on the ‘scrutiny’ process, interpret that law and decide whether someone has fallen foul of it – and then prosecute them.

No matter how much integrity the individuals concerned bring to their roles – and it is clear that they do – it is a remarkable concentration of influence in so few hands and would not be countenanced today if the system was being started from scratch.

Which, no doubt, is what Lord Carswell will say in December.

Click here to view a PDF of the full submission.