GIBEXIT ‘DEAL’ ANNOUNCEMENT LOOMING

There is increasing press commentary following statements on Monday by the Spanish Foreign Minister, Jose Manuel Albares, that a final announcement of a political Gibexit ‘deal’ governing the relationship between the UK and the EU/Spain over Gibraltar will be made tomorrow or Friday.

It is also said that the Chief Minister, Fabian Picardo, has had to cancel the Government’s farewell party for His Excellency the Governor, Sir David Steel, due to his having had to travel Brussels to attend the meeting as part of the UK delegation.

He will join the UK Foreign Secretary, Lord Cameron, and Sñr Albares at a meeting with EU Executive Vice-President Maros Sefcovic.

HEARD IT HERE FIRST

It is all something that you heard here first.

The blog of 3rd May said, “There is a meeting of EU Foreign Ministers on 16-17 May in Strasbourg. We shall see if a Gibexit treaty progress announcement will be made then.”

The blog of 9th May said, “As previously said on this blog, there is a meeting of EU Foreign Ministers on 16-17 May in Strasbourg. We shall see if a Gibexit treaty progress announcement will be made on the peripheries of that meeting.”

SPANISH PRESS REPORTS

The Spanish press reiterate that Sñr Albares has confirmed the dismantling of the frontier fence and the use of the Gibraltar airport by Spanish and other European airlines. The hope is that will encourage the development of the Campo de Gibraltar.

He is said to have expressed his confidence that the Mayors of the Campo de Gibraltar will travel on a direct flight to Madrid from Gibraltar to the next round of talks that may be held with him.

He insists that the agreement to be announced will guarantee the rights and improve the lives of current and future cross-border workers. He reiterated that it will be historic and greatly benefit thousands of workers.

Further that the ‘deal’ will allow the free movement of military personnel using the base.

‘DEAL’ POINTERS

Diplomatic sources also point to agreement being close with time being limited by forthcoming elections in Spain and then the UK.

The summoning of a meeting of Gibraltar’s Parliament on 21st May and that of Spain on 22nd May are further indicators that a Gibexit ‘deal’ announcement is imminent.

There is a little time to wait to hear a confirmation or denial.

GOOD FOR THE BREXITEER GOOSE AND GANDER?

It is the height of political and ideological hypocrisy and incoherence to hear some non-Gibraltarian United Kingdom British citizens living in Gibraltar boast that they voted for Brexit.

They claim that their vote for Brexit was a vote for the UK to retain its sovereignty, jurisdiction, and control separate from the EU.

Yet those same persons plead unashamedly, and in total contradiction, that a Gibexit deal, by which Gibraltar ensures a status within the EU and Schengen, should be reached for their opportunistic convenience.

INCOHERENT CONVENIENCE

The basis of their distinction is sheer selfish convenience, not any British nationalistic emotion which motivated their vote in favour of Brexit.

They consider Brexit to be fine for their lives in the UK, but not acceptable to undermine their lifestyle in the sun in Gibraltar.

It would interfere with their jaunts into the adjoining Spanish hinterland and the general comfort provided to each of them by a free-flowing EU frontier on their doorstep.

GIBEXIT ‘DEAL’ CONFUSION

The status with the EU that is being negotiated for Gibraltar will be separate from that of the UK.

Gibraltar would share an element of sovereignty, jurisdiction, and control with the entire EU, with its closest neighbour, Spain, with a sovereignty claim, having the greatest geographical interest.

Surely coherence would have dictated that those Brexiteers discard a Gibexit ‘deal’? But no hypocrisy and convenience take over subjectively from objective United Kingdom British nationalism.

The confusion in their position, comes about for purely selfish lifestyle considerations. They feel it allows them to ignore and forget their United Kingdom/British nationalism whilst in Gibraltar.

COHERENCE

The position of a non-Gibraltarian United Kingdom British citizens living in Gibraltar, and wanting to enjoy the Spanish/EU hinterland, could be reconciled only if they had coherently voted for the UK to remain in the EU. They openly boast their Brexit credentials and vote, however.

The huge majority that voted in Gibraltar in favour of staying in the EU precisely shows coherence.

It is a coherence that is being borne out to the end by the attempts being made to finalise a Gibexit deal that is now incoherently supported by those non-Gibraltarian United Kingdom British citizens living in Gibraltar who voted for Brexit.

OPPORTUNISTISM

A Gibexit ‘deal’ will benefit those non-Gibraltarian United Kingdom British citizens living in Gibraltar, as they will cross in and out of the EU/Spain opportunistically and for their own best convenience.

If there is a Gibexit ‘deal’, not one of them will volunteer to live without crossing into the EU/Spain as if a Gibexit ‘deal’ had not been achieved.

If there is no Gibexit ‘deal’, one would hope not to hear even one of them complain about the inconveniences that will bring to their respective lives in Gibraltar.

One wonders how many of them will even stay resident in Gibraltar. Many of us remember the shortcomings during the closed frontier era.

AIRPORT AGREEMENT IS 18-YEAR-OLD NEWS

What is causing consternation and concern in some circles is that the Spanish Foreign Minister, Jose Manuel, Albares, has said that there will be an agreement for the joint use of the airport.

It is not a new proposition, however. It was agreed already in the Cordoba Agreement 2006, so the concern and consternation are 18 years out of date.

ALBARES’ STATEMENT

He is quoted in Europa Sur yesterday as having said:

“ What is decided is that there will be joint use of the airport and that, for sure, will benefit this area, the area of shared prosperity, the development of the Campo de Gibraltar, give impetus to the connectivity, which right now is not optimised, to develop tourism and recover with normality something that has happened many times, which is that there should be commercial flights with Madrid and Barcelona, as happened already, for example, between 2006 and 2011.”

What Spain, the UK and Gibraltar agreed already in the Cordoba Agreement, briefly was as follows.

ENHANCED AIRPORT USE

To enable the enhanced use of Gibraltar Airport for the benefit of social and economic development and improved employment and commercial opportunities of all and without prejudice to the respective sovereignty positions and constitutional status of all parties.

There will be a lifting of Gibraltar Airport’s suspension from all EU aviation measures. Consequently, Gibraltar Airport will be bound by, comply with and benefit from all applicable EC regulations and directives.

The UK Government is and remains responsible for all international obligations including aviation safety and security relating to Gibraltar Airport, as laid down in the pertinent rules and regulations of ECAC/ICAO, Eurocontrol and of the EC.

In the light of the UK’s departure from the EU and the intended ‘practical inclusion’ of Gibraltar into Schengen, “EC” (now “EU”) rules and regulations will likely need to be the responsibility of some other forum or entity, or directly applicable subject to Schengen wide acceptance or application.

Recognising that Gibraltar Airport is a military airfield available for civilian flights, there will be appropriate notification of any interruption to the arrangements, including flight restrictions caused by military use.

AIR TERMINAL ARRANGEMENTS

A single air terminal adjoining the southern side of the fence/frontier will be built, in the appropriate manner as decided by the Gibraltar Government, to enable passengers and their luggage access to and from such terminal directly to/from the north side of the fence/frontier.

Gibraltar has complied. There has been no movement from Spain on this front. It may well be that under the proposed Gibexit ‘deal’ such a terminal will not be needed on the Spanish side of the frontier.

SCHENGEN CONSIDERATIONS

The following arrangements will apply for passengers arriving or departing through the terminal:

Passengers flying from Gibraltar Airport to a Spanish airport accessing the terminal via the direct access from the north side of the fence/frontier will be treated as if they had not left the Schengen travel area.

For those intending to enter Schengen before boarding the aeroplane checks were to be carried out on the Spanish side of the Gibraltar Airport. This check was be carried out by Spanish officials, located in Spain, in a manner facilitated by the design of the terminal. Therefore, on arrival at a Spanish airport, these passengers will not be subject to further Schengen entry controls.

Passengers flying to Gibraltar Airport from a Spanish airport and exiting the terminal via the direct access to the north side of the fence/frontier were also be treated as if they had not left the Schengen.

Other passengers travelling to Gibraltar Airport from a Spanish airport, after they have disembarked, will go through a Schengen exit check, which will be carried out in the same manner as above. These passengers will then continue to a place where the Gibraltar authorities will carry out an appropriate identity/passport check to clear entry into Gibraltar.

NEW ‘DEAL’ WILL CHANGE SCHENGEN ARRANGEMENTS

It seems that the proposed new ‘deal’ would change these proposed arrangements, with Frontex undertaking checks into Schengen in the first four years, which would seemingly now include Gibraltar, so entry into Schengen will be automatic.

Gibraltar immigrations checks will seemingly be undertaken by Gibraltar officials also.

Both the Schengen and Gibraltar’s checks within the new Gibraltar Air Terminal, absent any other agreement.

CORDOBA AGREEMENT FORESAW SCHENGEN PARTICIPATION

The potential for Gibraltar to participate in Schengen was foreseen.

The arrangements provided for, once the participants having assessed “the operation of these arrangements they will, but subject to further agreement in that regard, give consideration to ways of obtaining the practical benefits of Schengen clearance for flights to and from Gibraltar Airport and Schengen destinations other than Spanish airports in a way legally and politically acceptable to all the participants.”

AIR CARGO

It is not yet clear what the new arrangements regarding cargo. The Cordoba Agreement provided the following, which may be a hint of what the practical arrangements going forward might be.

“Air cargo arriving from within the European Customs Union and destined to the northern side of the fence/frontier or vice versa, will be treated as in transit/bond and thus will not be subject to any customs duties. Arrangements in accordance with applicable EU requirements will be made to facilitate the overland forwarding to Gibraltar of cargo, free of Spanish customs duties, from flights destined for Gibraltar Airport that have been diverted to a Spanish airport.”

TERMINAL FACILITIES

Air Terminal facilities were to be as follows, again, a hint of what may be to come.

“All passenger and flight services including all facilities and functions relating to airside and aircraft services, passengers’ check-in, baggage handling and passenger and baggage security will be provided in and by the terminal. Subject to EU directives the Government of Gibraltar will grant a contractual concession to operate the terminal and provide these services on a commercial basis to a joint venture company owned by Gibraltar and Spanish commercial interests.

“The Geneva Airport model vis-à-vis France will serve, as appropriate, and as may be agreed as the basis for the arrangements.”

PRACTICAL ARRANGEMENTS

The Cordoba Agreement envisaged the need for practical arrangements to allow for the foreseen enhanced use.

Interestingly it included, “… the creation of a tunnel at the Eastern end of the airfield, in order to avoid vehicular traffic routinely crossing the airport runway, and the increase in vehicular traffic congestion exacerbated by a material growth in the number of flights.”

The tunnel is completed and already in use.

“Infrastructure and arrangements north of the fence/frontier will have to be adapted in order to facilitate the direct access of passengers and luggage to the terminal.” It is an observation that must include the provision of pedestrian access, which has not happened.

The need for EU funding was recognised and envisaged.

SPAIN’S TARDINESS

Spain have so far failed to fund and undertake civil engineering works that were required on its side of the fence to give practical effect to the agreed arrangements. Gibraltar funded and built its new civilian air terminal as it had agreed to do.

The likelihood is that no new terminal or extension to the terminal will need to be built on the Spanish side of the frontier, which does not preclude the possibility that Spain may want to and do so.

AGREEMENT TERMINOLOGY

The terminology used in the Cordoba Agreement is interesting.

It talks of the north and south side of the “fence/frontier”. The term “fence/frontier” is defined.

The Cordoba Agreement clearly states, “… to overcome problems of terminology relating to references to the word “frontier” or “fence”, the phrase “fence/frontier” is used. This phrase means frontier for the UK and Gibraltar, and fence for Spain.”

FINAL ANNOUNCEMENT

The use of such precise terminology is indicative of the care and detail all sides have and need in coming to any agreement. The complications engaging a Gibexit treaty are there to be seen, hence possibly the delays in any final announcement.

There were hints at the possibility of an announcement later this week. The possibility of progress to allow for such an announcement do not seem to have flourished. Despite the positivity of very recent public statements from Spain’s Foreign Minister, an imminent statement may not come about.

SELF- GOVERNMENT UNDER MICROSCOPE IN MCGRAIL INQUIRY

The ability to govern ourselves in a self-determined manner has come under close examination in the McGrail Inquiry [Inquiry] and will need wide consideration and input once the Inquiry reports.

Any report of the Inquiry will need scrutiny and study by many. It is a review that should have huge repercussion on how we administer ourselves currently, including leading to constitutional reforms and changes in how we govern ourselves.

REMEDIAL ACTION

Any defects, defaults, or shortcomings that may be found to have occurred in the events and interventions leading to Ian McGrail’s retirement will be capable of being, and must be, applied to other areas of constitutional governance and public administration.

Remedial action should then follow to the extent of probably requiring constitutional changes to enhance separation of powers and action.

CONSTITUTIONAL INDEPENDENCE

Bodies that exist, be it under the Constitution or in law, that are intended to ensure good and independent administration without political interference must understand and perform their functions in that way.

They must do so uninfluenced by any part of the executive government, be that the Governor or the elected Government. It is a difficult task in a small jurisdiction with so many interwoven relationships and dependencies.

POLICE AUTHORITY SHORTFALL

It seems by its own admission that the Gibraltar Police Authority [GPA] failed in some regards on this front, but we must await the Inquiry report to fully understand the extent.

The GPA is a constitutional body. It exists in large part to protect the police from interference by ‘powers’, be those ‘powers’ political or colonial (for want of a better word), namely the elected Government or the Governor.

The evidence in the Inquiry suggests that it is a function that was not understood by the GPA. It does not seem to have been applied in the case of Ian McGrail in any event. The Inquiry has brought forth to public attention a myriad of potential systemic and actual shortfalls that will need attention.

GOVERNOR POINTS TO GPA

It seems not to have been so applied in some regards, as can be appreciated from the evidence given yesterday by Nick Pyle, who was Governor at the time of Ian McGrail’s retirement and events surrounding that.

He has acknowledged, for example, that Ian McGrail should have been fully appraised of any allegations of dishonesty to enable him to defend against those allegations. There seem to have been serious shortcomings in that regard, which goes to the very foundation of that issue.

Mr Pyle goes on to point the finger of blame at the GPA by arguing that the Governor and Chief Minister were effectively complainants, and it was for the GPA to process the complaints according to law.

GPA SHORTFALL?

The evidence to the Inquiry, however, emphasises the attention paid by those GPA members who gave evidence to the views of the then Governor and the Chief Minister about Ian McGrail continuing in office. Both are precisely the persons that needed oversight in exercise of the GPA’s independent functions and obligations. It seems that did not happen.

We will see whether that was achieved in the case of Ian McGrail, as and when the Inquiry report is finalised and published.

Undoubtedly there will likely be more that will be criticised concerning the overall matters heard in the Inquiry, so the hope is that the GPA will not be the fall guys.

OTHER INDEPENDENT BODIES

There are other bodies, for example the Public Service Commission and the Judicial Service Commission, and many more statutory bodies, that are intended to act independently and fairly.

We must hope and pray that each of those bodies behave as required, and fully appreciate and understand what their functions and statutory duties are.

Hopefully the report that will result from the Inquiry will highlight and clarify what duties and obligations of those sitting on independent public bodies have. It is a huge opportunity to fill a gaping hole in how we understand the responsibilities of involvement in governance are.

SELF-DETERMINATION

The advance towards self-determination requires that our governmental and administrative bodies function independently of undue political influence or political favouritism. There is much that points to the near non-existence of that: subjectivity rules in the main.

An essential ingredient is the separation of powers generally, but specifically also in our Parliament. Ultimately the actions of government are overseen by Parliament. If the executive and legislative government are one and the same, as is the case, that oversight goes totally.

Additionally, recourse to the Supreme Court, with its inherent delay and expense, should not be the only recourse against administrative bias. There is a need to find an alternative.

UK’S DEFENCE USE POST-GIBEXIT MUSTN’T WEAKEN SOVEREIGNTY

UK Armed Forces Minister Leo Docherty’s very recent intervention in the House of Commons is a further sign that a Gibexit Deal is ‘done’, and other meetings in London with the Chief Minister today indicate that an announcement may be in the offing.

All that, despite past indications that military/defence considerations were possibly delaying the ability to conclude a Gibexit treaty, Leo Docherty seems to indicate now that it is not so.

MoD AND CIVILIAN POPULATION MUST BE SUBSTANTIVELY IDENTICAL

Any differentiation in the treatment of the Ministry of Defence or its personnel [MoD] in a Gibexit deal should not undermine, however, the British status of Gibraltar’s civilian population and institutions.

Great care must be taken therefore to ensure that any discrete treatment of the MoD should be procedural in nature, and not substantive.

A substantive distinction could be seen as amounting to a diminution of the civilian population’s British sovereignty. It would not be so if what will be applied is non-nationalistic EU requirements to civilians in return for EU privileges and advantages.

NO “EXTERNAL INTERFERENCE” TO UK’S GIBRALTAR OPERATIONS

Mr Docherty has confirmed, in answer to a question in the House of Commons from fellow Conservative MP, Greg Smith, that the Gibexit negotiations continue to ensure the UK’s ability, without “external interference”, to operate through Gibraltar.

His answer was, “The Ministry of Defence continues to engage with other Government Departments throughout the negotiation process to ensure that the UK remains able to operate to through and from Gibraltar without interruption or external interference.”

CHIEF MINISTER’S LONDON MEETINGS

At the same time, GBC has reported that there will be a meeting in London today between the Chief Minister and Lord Cameron, the UK Foreign Secretary, as hopes for a Gibexit treaty intensify according to GBC.

Further, the Chief Minister will be meeting also with David Rutley, the UK Overseas Territories Minister.

IMMINENT ANNOUNCEMENT?

Hopefully there will be news of the outcome of those meetings, but what is significant is that the hopes of a Gibexit treaty are growing, so the possibility of an imminent announcement increase.

As previously said on this blog, there is a meeting of EU Foreign Ministers on 16-17 May in Strasbourg. We shall see if a Gibexit treaty progress announcement will be made on the peripheries of that meeting.

RULE OF LAW- SUBJECTIVE OR OBJECTIVE?

The Chief Minister maintains that he is a huge upholder of the Rule of Law.

It seems odd, not to label it as inconsistent, therefore, that the Chief Minister should question the grant to the Royal Gibraltar Police [RGP] of a search warrant by a Stipendiary Magistrate in pursuance of the Rule of Law and to assist an investigation.

He says as much whilst admitting that he had, at the time, no knowledge of what evidence the police had to support, not just an application for a search warrant, but its issue. Despite that hole in his knowledge, he described the basis for the issue of a search warrant as “flimsy”.

Its grant by the Stipendiary Magistrate is a final reality, until and if any judicial appeal overturns it. The search warrant in question has never been overturned. There should have been no political questioning of it. The oddity is that it does not seem to have ever been executed.

RULE OF LAW UPHELD

Therefore, the Rule of Law was upheld objectively by the Stipendiary Magistrate.

Surely, that being so the Chief Minister should not have questioned subjectively whether the proper course was to have sought the less intrusive alternative, namely, a production order.

The fact is a search warrant had issued, so the Rule of Law had been upheld. It remains unquestioned in any court of law. It should not have been open to question by any politician in office, especially one with an interest, however direct (friend and mentor) or tangential (financial interest), in the matters engaged.

REPUTATIONAL RISK

One important concern on the Chief Minister’s part that came out of his evidence was his concern to avoid jurisdictional reputational risk.

Perhaps that is an issue that should have been primordial in the minds of all in their entire dealings engaging 36 North Limited and peripheral events.

Certainly, it is not a relevant consideration for the Stipendiary Magistrate in his decision to issue any search warrant on application by the RGP.

SEPARATION OF GOVERNMENT AND THE POLICE

The association of a Chief Minister, in any capacity be it in that office or as a friend of anyone, in any police investigation of alleged criminality is not acceptable. It blurs the lines that must exist to ensure the independence of the RGP.

It is precisely for that reason, to maintain RGP independence, that the Gibraltar Police Authority [GPA] exists. Further, that the police come under the constitutional responsibility of the Governor, subject to the GPA, and not the Chief Minister or any other Minister.

Jurisdictional reputational risk arises precisely due to the exercise of any such influence over the police by anyone in government, or indeed even the Governor. We shall see how the McGrail Inquiry deals with that issue as and when it makes its report.

Although the Inquiry Report is to the Governor, it will be delivered to the public. The entire Inquiry has been a public process. It defies logic that any Inquiry Report would be kept private in its totality following such a public process. The relevant law requires it to be published, subject to appropriate redactions.

36 NORTH

There is no getting away from the admitted fact that the partners of Hassans law Firm had a 30% interest in 36 North Limited at the times relevant to matters under consideration by the Inquiry.

Therefore, both James Levy and Chief Minister Fabian Picardo had a financial interest that would benefit from any profitable business activity of 36 North Limited.

It is a fact that 36 North Limited intended to benefit from a business relationship with the government, as matters transpired it did not.

It is that which, aside from potentially many other factors, which should have been sufficient to convince the Chief Minister to stay well away from any matter pertaining to the RGP’s involvement surrounding 36 North Limited, including any action of the RGP related to James Levy’s involvement in any matters concerning that company.

CONTACT NOT INAPPROPRIATE

Are those realties not precisely what might put the jurisdiction at reputational risk? It was not the search warrant that did that. It was the existence of the facts that supported the issue of a search warrant, and the voluntary involvement of the Chief Minister, that created a potential for jurisdictional reputational risk.

Despite all that, Mr Picardo gave evidence that he saw nothing inappropriate in remaining in contact with James Levy in a live criminal investigation, rather than maintaining his distance. Surely, he should have kept well away, and let the investigation evolve to an appropriate conclusion, which may have led to no further arrests.

Hablar y Decir

Remember it’s not “como habla” it’s about “lo que dice” …. My shortest blog ever!

‘NO DEAL’ PLANNING NEEDS UK AID

There is nothing in the public domain about what the plans for a Non-Negotiated Outcome [NNO] to Gibexit might be which will overcome all consequences of such an eventuality.

Worryingly, however, there is an admission from the Chief Minister that “practical and economic support” from the UK would be necessary. There is no confirmation that such support would be forthcoming.

The Deputy Chief Minister, Dr Joseph Garcia, recently met online with The UK Minister responsible for Gibraltar, David Rutley.

Following that meeting the message is that “… it was important to continue to prepare for the alternative as much as we can.” The Chief Minister has said that there are very developed plans to cater for an NNO.

There is no reference there to UK aid being forthcoming.

BRITISH SOVEREIGNTY WITHIN EU TREATY

The Chief Minister continually repeats that what he seeks is agreements with the EU following Brexit that do not diminish British sovereignty over Gibraltar.

His last expression of this objective is contained in his letter of 1st May to the Hon. Bill Cash MP, chair of the European Scrutiny Committee of the House of Commons [Committee], as is his NNO preparation reassurance.

It followed suggestions by the Committee that parts of the Gibexit negotiation amounted to “… a significant diminution of British sovereignty.” The fear was based on Eurosceptic arguments based on increased EU role and power in and over Gibraltar should a Gibexit treaty be reached.

UK EMPHATIC ON GIBEXIT DEAL

Mr Rutley confirmed to the Committee that central aspects of a Gibexit treaty were resolved, including matters related to the airport, goods and customs, and mobility of persons. It is difficult to see what other areas are pending agreement.

The message that comes through loudly is that the UK are convinced of the need for a Gibexit treaty to be forthcoming.

It seems that one is agreed subject to some minor detail (see blog. “Gibexit Political Deal Announced”, 12 April). He emphasized the shared commitment of all parties to arrive at such a Gibexit treaty.

There is a meeting of EU Foreign Ministers on 16-17 May in Strasbourg. We shall see if a Gibexit treaty progress announcement will be made then.

UK PRACTICAL AND ECONOMIC BACKING?

The Chief Minister’s same letter says, “We are confident also that we have the full backing of your Committee and the British Parliament for the practical and economic support that would be required should an unacceptable proposal block these negotiations.”

The clear message is that we would need help and aid from the UK in the event of an NNO. There is no public UK commitment to provide that help and aid, just insistence that a Gibexit deal should be reached.

The message one receives must be that the alternative of an NNO does not really bear thinking about.

UK MILITARY

Mr. Rutley also told the Committee, “The United Kingdom will only reach an agreement with the EU on Gibraltar which the government of Gibraltar is content with, which safeguards Gibraltar sovereignty, and which fully protects the operations and independence of the UK’s military facilities in Gibraltar…”.

The reference to the UK military is noteworthy, especially his reference to nothing in the Gibexit talks would influence the UK military’s independent operation in or from Gibraltar.

He emphasised that “The airport and the airfield is run and managed by the Ministry of Defence, which will not change… in terms of the airport and the airfield, in terms of the way it’s run and managed by the Ministry of Defence.”

UK Defence issues have been the subject of much comment, but little specific reference from the UK. An interesting scenario may develop in the event of an NNO as between the civilian population and the military.

MCGRAIL, NO NOTES AND BAD MEMORIES

What is becoming obvious in the McGrail Inquiry is that many in positions of authority or in official positions or in constitutional/statutory bodies seem informal in the manner that they carry out their duties.

Many of them, and some hold important official positions and/or are Kings Counsel, neither commit important matters to memory or make a note of what is discussed or decided.

RECORDS NEEDED IN THE FUTURE

Irrespective of what the Inquiry may conclude, one issue must be sorted out once and for all, and that is that careful notes and minutes should be kept, not just of official meetings, but also of exchanges of import between participants in official bodies and officeholders.

The informality that reigns in officialdom in many regards seems obvious from the evidence being given to the Inquiry. It is unacceptable. There is a need for clear guidelines on record keeping, and accessibility to those records.

INFORMALITY REIGNS

What is coming through is that it seems that our public service is run in that manner seemingly across the board. The informality in which matters of governance should be dealt with seems to be prevalent in how Gibraltar is administered and governed.

There is no doubt that during the period that the Inquiry is concerned with, events and interactions of huge import were happening. Yet people central to those events and interactions neither remember nor have notes about greatly important occurrences.

DOUBT

The informality must end.

Lack of information through failure to record and bad memory leads to doubts over the reliance that can be placed on the evidence being given by relevant witnesses.

However, that is an issue on which we shall have to wait on for the outcome of the Inquiry, but what is undoubted is that many who are following the Inquiry are astounded by and widely commenting on the lack of memory of and of notes from some important witnesses.

SMALL SIZE MAGNIFIES NEED OF FORMALITY

It is central that we should learn from the ongoing events coming out in the Inquiry that, despite Gibraltar’s small size, formality must and should reign in carrying out official functions of any source.

In fact, the need for formality is magnified precisely due to small size, and the consequent interrelationship that exists between so many individuals. There is a need for more organised functioning within officialdom. The understanding of that need must be enhanced by full written guidance and rules going forward.

In that context it is evident also that government does not adequately resource many of the ‘volunteer’ bodies that exist to help Gibraltar’s administration, despite that some of those are constitutional bodies.

COST VERSUS ACTION

It is important, whatever the outcome of the Inquiry might be, that any recommendations are seriously considered and effected.

If there are no recommendations, then attention must be given to deal with any criticisms that may be contained in the Inquiry Report, and those should be dealt with by positive action.

ATTORNEY GENERAL’S REMUNERATION

As the McGrail Inquiry progresses it is worth bearing in mind the comparative earnings of each of the Attorney General in Gibraltar [AG] and Director of Public Prosecutions [DPP].

The current AG, Michael Llamas, earns £427,944 a year, for that one would have perhaps expected better note keeping and memory.

The official salary of the AG is £139,886 a year. The DPP earns the same annual amount.

The difference in the AG’s remuneration is made up by an unexplained Principal Legal Advisor Allowance of £288,058 a year.

It is said also that he has the benefit of a special tax status, which means he pays a reduced amount of Income Tax.

AG’S FUNCTIONS

The constitutional function of the AG is to fill a public office with all expressed powers relating to the administration of criminal justice. The Gibraltar Constitution Order 2006, however, does not limit the functions of the AG to the administration of criminal justice.

He is empowered to prosecute criminals, take over the prosecution of criminals started by others, and to end criminal prosecutions.

Those powers can be exercised directly by him or delegated by him. However, taking over criminal proceedings and ending criminal proceedings are in the sole constitutional power of the AG.

The AG is not to be subject to the direction or control of anyone in exercising criminal jurisdiction.

Accordingly, it is odd that the current AG admits in the McGrail Inquiry to having no experience of criminal law practice. Hence the need and extra cost of a DPP, but that does not excuse the need for some criminal practice experience to act within matters exclusively in the role of the AG.

However, Mr Llamas did exercise the criminal jurisdiction that is exclusively in his constitutional domain, namely the entry of nolle prosequis. He did so despite that the DPP advised, at the time, that there was sufficient evidence to prosecute.

WIDER REMIT

For time immemorial the AG and his office, which includes other lawyers filling the role of Law Officers, have had a much wider remit. They have provided in addition general legal advice to the government in the capacity of the government’s principal legal adviser, including issues of international law, human rights, civil law, etc.

Those functions have been included in the past as part of what the AG provided within his official salary. They have been provided as an independent public interest function. It is an independence from the Governor, Chief Minister, and Government.

The oddity today is that the roles seem to have been separated to justify the payment of a massive additional allowance. The allowance is double the ‘official’ salary of the AG.

AG APPOINTMENT

The AG is appointed by the Governor on the advice of the Specified Appointments Commission [SAC].

The SAC is made up of two appointees of the Governor acting on the advice of the Chief Minister, and two appointed by the Governor after consulting the Chief Minister, one of these is the chairman with a casting vote.

The method of appointment is to separate the public office of AG from the political executive activity of an incumbent government.

PUBLIC OFFICER

Neither the SAC nor any other independent body, however, governs the functions of the AG, beyond the reality that the AG is constitutionally a public officer. It is a sad situation leaving a huge hole in the objective independence of public officers from influence by a political government of any hue.

The wider engagement of the AG by the Government on a much higher remuneration seems inconsistent with the obligation of the AG to act as a public officer, especially in his functions engaging criminal law. The ‘influence’ that higher pay may bear on the mind of any appointee cannot be objectively separated.

WIDER CONSTITUTIONAL REPERCUSSIONS

There is no doubt that it is another failing of the Constitution that is coming more to public attention due to the McGrail Inquiry.

The findings in that Inquiry will have wide repercussions to many constitutional aspects of Gibraltar’s governance. A subject close to the heart of this blogger and about which he has written much.