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Rights. In Procola v Luxembourg, the Court examined the overlapping functions of the Judicial Committee of Luxembourg’s Conseil d’État.34 Four out of five members who sat as judges in an administrative law case had previously given a pre-legislative opinion on the legislative instrument which was the subject of that hearing. The European Court held that: “The mere fact that certain persons successively performed these two types of function in respect of the same decisions is capable of casting doubt on the institution’s structural impartiality.”35 Five years later, the overlapping roles of the Bailiff of Guernsey were challenged in McGonnell v United Kingdom.36 The Bailiff had presided over the hearing of Mr McGonnell’s planning appeal in 1995 (a judicial function), as well as presiding as Deputy-Bailiff in 1990 over the passage of the island’s development plan (a legislative function), on which the decision to refuse Mr McGonnell’s planning appeal had been based.37 The Court held: “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 to determine a dispute over whether reasons exist to permit a variation from the wording of the legislation or rules at issue.”38 The mere fact that the Bailiff had presided over the legislature when it was debating and passing the legislation which the Bailiff later took 34 35 36 37 38
Procola v Luxembourg (1995) 2 E. H. R. R. 193. At paragraph 45. McGonnell v United Kingdom (2000) 30 E. H. R. R. 289. As head of the Island’s administration, the Bailiff was also a senior executive officer. At paragraph 55.