Next Tuesday the European Court of Human Rights will consider whether a litigant was denied a right to a fair hearing in Guernsey because the judge was also a member of both the legislature and the executive.

 The case of McGonnell v United Kingdom is being watched carefully in an island community sensitive to the application of fundamental freedoms to a political and legal system that retains feudal customs. The decision is also anxiously awaited in Whitehall
 because it will influence, and may well determine, whether the Lord Chancellor can continue to sit as a judge in the Appellate Committee of the House of Lords.

Richard McGonnell was refused planning permission by the Island Development  Committee to build a dwelling house on his land. When he appealed to the Royal Court, it  was presided over by the Bailiff of Guernsey. The appeal was dismissed. Mr McGonnell's  complaint is that he was denied a fair hearing because the bailiff is not only the senior judge  on the island but also has a range of other responsibilities in Guernsey. He is the  President of the States of Deliberation (the legislature), he presides (with a casting vote)  over four States Committees and he is head of the administration of the island. As they say in  the Civil Service, power is wonderful but absolute power is absolutely wonderful.

 Article 6 of the European Convention on Human Rights entitles litigants to a fair hearing  by an independent and impartial tribunal. The European Court has stated in previous  decisions that the judge must be independent of the executive and the legislature, as well as independent of the parties to the proceedings. The court has emphasised that it is not sufficient that the judge is independent and impartial. It is also vital that the judge appears
 to be so, in order to maintain and promote public confidence in the administration of  justice.

 Mr McGonnell's complaint was upheld by the European Commission of Human Rights (the
 lower judicial body before its abolition under recent reforms to the Strasbourg procedure).
 The commission accepted that the bailiff's other functions did not directly affect his  judicial duties in Mr McGonnell's own case, and that most of his working time is devoted  to the administration of justice. Nevertheless, the commission concluded that "it is  incompatible with the requisite appearances of independence and impartiality for a judge to  have legislative and executive functions as substantial as those" carried out by the bailiff.
 Those other functions meant that "his independence and impartiality are capable of appearing open to doubt". Therefore, there was a breach of Article 6.

 It will be surprising if the European Court does not confirm the view of the commission, or,  more precisely, the analysis by the British member of the commission, Sir Nicolas Bratza
 - since appointed to the court - in his concurring opinion. As he observed, the  breach of Article 6 arises in a case, such as Mr McGonnell's, where the proceedings in which  the bailiff sat as a judge related to the acts of the executive, here the refusal of planning  permission, by contrast with a case where there is a private law dispute that does not involve any state agency.

 The judges of the court, although from a wide variety of distinct legal backgrounds, are very
 likely to sympathise with the reasoning of the 18th-century jurist, Montesquieu, who thought
 he was explaining a basic principle of the British constitution. As he contended, with  only a degree of Gallic exaggeration: "There would be an end to everything were the same  man, or the same body, whether of the nobles or of the people, to exercise those three  powers, that of enacting laws, that of executing the public resolutions and of trying the causes  of individuals."

 As the Strasbourg court will have well in mind, the institution of the Lord Chancellor does
 involve the exercise of those three powers. One man - there has never been a female  incumbent - sits as a member of the Upper House of the legislature, is a Cabinet minister
 and, several times a year, presides over cases heard by the highest court in the land, the  Appellate Committee of the House of Lords.

 Lord Irvine of Lairg, the current Lord Chancellor, has vigorously defended his right,  and duty, to follow the example of his predecessors and sit in a judicial capacity, so  enabling him to keep in touch with legal and judicial practice, and influence the  development of the common law.

 Nevertheless, the appearance of independence and impartiality is simply incompatible with a  Lord Chancellor acting as a judge when a case raises questions of public policy or involves  the conduct of another institution of the State. Once the Human Rights Act comes into force  next October, there will be very few cases outside those categories. European assessment  of the anachronisms of the Guernsey legal system is likely to signal the end of the Lord  Chancellor's judicial career.

  The author is a practising barrister and a Fellow of All Souls College, Oxford.