Why did ESC seek HM Comptroller’s advice?

It also seems clear that a key element of this saga was the advice received from the law officers. Press reports state that the president of ESC sought the advice of HM Comptroller over the use of Rule 49, indeed the item in today’s Press (8/8/23) indicates the president relied on the advice. One aspect of this, which I think nobody has questioned, is: why did ESC seek, and seemingly rely on, and act in accordance with, HM Comptroller’s advice?

I know what you’re thinking, who else should they turn to for legal advice? After all that is what the law officers are there for – to give legal advice. That’s correct, but the interpretation of the Rules of Procedure is not a legal matter.

Let’s step back a moment and think about the law and what legal advice is. Legal advice is about the interpretation of the law, and to state the obvious the law is complex. When considering a specific piece legislation, one does not only have to consider that particular law, but also other laws which may interact with it, case law or judgements, and appeals, any of which may have defined or refined the interpretation of the particular law. Hence why lawyers are needed to advise – they should be familiar with all the differing aspects which could affect an interpretation of any particular piece of legislation.

But this is not the case with the Rules of Procedure; they are not impacted by other rules, they are not impacted by the decisions of judges here or in the UK. Unlike laws, the Rules of Procedure are a set of stand-alone rules, the interpretation of which is based only on the wording of the rules themselves.

Importantly, as a former Bailiff often said, States resolutions, are not laws. The adherence to a States resolution is a political matter, not legal matter. And, by extension, interpretation of the Rules of Procedure is a political matter, not a legal matter.

Given the fact the rules are not laws there is actually more logic for the president of ESC to have sought political advice for its interpretation; perhaps from the president of SACC, (which is responsible for the rules), or perhaps experienced politicians such as the Father of the House, or senior politicians such as other presidents, or the Chief Minister.

HM Comptroller did not need his ‘legal spectacles’; so, as talented an advocate as he undoubtedly is, his advice really amounted to one person’s interpretation of the words of Rule 49, and so should carry no more weight than any of the people I mentioned above – or the other members of ESC.

I may be wrong, but I could find nowhere in the Rules of Procedure where it is stated that the final word on interpretation goes to a Law Officer.

Which brings us back to the original question – why rely on a law officer’s advice? Especially when advice is simply that – advice. It is not definitive, it is not binding, it does not have to be followed.

PETER GILLSON