There is absolutely no doubting that a Governor and a Government of Gibraltar, represented primarily by the Chief Minister, must work together, but not without losing sight of the constitutional role that each has.
It is not the same as the constitutional role that His Majesty King Charles III has in the United Kingdom, which is what our departing Governor, Sir David Steel, compared his function to be in his recent GBC interview. Sir David Steel seems to continue to underplay what the constitutional role of a Governor is.
Yes of course he is “… His Majesty’s representative in Gibraltar.” It is not a role, however, that limits the functions of a Governor to those of His Majesty in the UK. The Gibraltar Constitution Order 2006 [Constitution] provides governors with a much wider role.
TWO WRONGS
It is not accurate for him to say in his farewell speech that “… my role has been merely to offer counsel and advice.” Especially as the Government of Gibraltar is the Council of Ministers and the Governor is part of that Council. The Constitution gives him wider and specific powers.
It is equally wrong for people to “… have criticised the closeness of our professional relationship”, in reference to the relationship between, him and the Chief Minister, Fabian Picardo. A professional relationship is crucial as between a Governor and a Chief Minister and his/her government.
PERCEPTIONS
Any wrong does not come from the closeness of any relationship.
If there is wrong, it comes about from any possible perception of the existence of misunderstanding and/or misapplication of any constitutional and/or statutory duties, obligations, and responsibilities, especially if any such perception is allowed to arise from the belief of the existence of a friendship with a Chief Minister.
Perception is therefore an important consideration. The clear separation of powers and their exercise by a Governor must not be capable of being perceived to come about due to any seeming friendship.
If such a friendship exists and is admitted, especially leading to reports on GBC of tears at the Governor’s farewell, then issues do come to the fore of necessity, irrespective of actuality. We are in that remit due to the recent admissions by both the Chief Minister and the Governor in their respective farewell speeches.
MAGNIFICATION
It is a shortfall that is magnified and aggravated in a constitutional situation where there is no separation of powers between the legislative and executive arms of government.
In those circumstances and in any event, a Governor should take extra care not to be seen to be too close to a Government, a Chief Minister, or indeed, any minister.
A Governor must be seen to be undertaking his constitutional duties and obligations independently, with input only from his Deputy Governor, direct senior staff and, if necessary, the UK Foreign Office.
The Governor has a myriad of responsibilities and duties under the Constitution. Many are summarised below.
GOVERNOR’S DUTIES AND POWERS
The Governor must keep the Chief Minister informed about the conduct of all matters for which the Governor is constitutionally responsible.
A Governor, with the prior approval of the Foreign Secretary, can make laws on matters for which he/she is constitutionally responsible, if the Government is unwilling to make those laws in Parliament.
All laws passed by Parliament need to be “… assented by His Majesty or by the Governor on behalf of His Majesty.” They need to be for “… the peace, order and good government of Gibraltar.”
It follows that if a law breaches the requirement of “peace, order and good government” assent may be refused.
Additionally, a Governor is empowered to act contrary to the advice to dissolve Parliament of a Chief Minister or in the absence of such advice “… if he considers that the good government of Gibraltar requires him to do so.”
A Governor must keep a Chief Minister fully informed about the conduct of matters within his responsibility. Vice versa, a Chief Minister must keep a Governor informed of policies and public affairs.
Crown lands are granted or disposed of by the Governor on the advice of the Chief Minister. Crown lands held by the Ministry of Defence are granted or disposed of by the Governor on the Foreign Secretaries instructions and with the consent of the Chief Minister.
Powers of pardon are exercised by the Governor after consulting with the Chief Minister.
EXCLUSIVE CONSTITUTIONAL POWERS
A Governor is responsible under the Constitution for external affairs (acting in consultation with the Chief Minister), defence, internal security, and certain appointments to public office.
Parliament cannot proceed with any Bill that the Governor signifies concerns any of those matters.
The Governor’s exercise of responsibility for external affairs is subject to the UK Government’s “… overall responsibility…”.
Internal security includes the Police but the exercise of a Governor’s power over the police is circumscribed by the powers given to a Gibraltar Police Authority under the Police Act 2006. Further a Governor may ignore advice on whom is to be appointed Commissioner of Police “… where he judges that accepting that advice would prejudice Her Majesty’s service.”
Additionally, His Majesty retains “… full power to make laws … for the peace, order, and good government of Gibraltar…”. It includes the power to amend or revoke Gibraltar’s Constitution.
Gibraltar’s courts cannot inquire into or question whether a Governor has complied with any instructions from the UK.
A Governor may reserve his assent for the UK Government to signify it if, absent the authority of the Foreign Secretary, he considers it repugnant to the Constitution or “… repugnant to good government or incompatible with any international obligation.
A Governor must act as advised by the Chief Minister that the Council of Ministers has so decided. He need not do so if exercising any of his constitutional or legal powers as instructed by His Majesty, or any power within his constitutional or legal remit.
Removal of Appeal Court Judges, Supreme Court Judges are subject to being removed by the Privy Council if a tribunal of three high judicial officers selected by the Governor advise that removal should be recommended to the Privy Council. The Governor may suspend any judicial post holder whose removal is being considered by such a tribunal.
Those powers are exercised by the Governor in accordance with advice from the Judicial Services Commission.
PUBLIC SERVICE COMMISSION
A Governor makes public appointments on the advice of the Public Service Commission. He may ignore that advice with the Foreign Secretary’s approval if he/she considers that complying would prejudice Her Majesty’s service.
Four of the members of the Public Service Commission are appointed by the Governor, as advised by the Specified Appointments Commission.
SPECIFIED APPOINTMENTS COMMISSION
The Specified Appointments Commission is made up of four members.
Two are appointed by the Governor as advised by the Chief Minister “… following consultation with the Governor. A further two “… appointed by the Governor, acting after consultation with the Chief Minister, one of whom shall chair and have a second and casting vote.”
Advice is difficult to reject, consultation leaves the final decision to the Governor, but restricts full discretion.
The Attorney-General, Principal Auditor, and any other public officer so required by law are appointed, have their appointments terminated or are disciplined by the Governor on the advice of the Specified Appointments Commission.
The Governor may ignore that advice with the Foreign Secretary’s approval if he/she considers that complying would prejudice Her Majesty’s service.
JUDICIAL SERVICES COMMISSION
The Judicial Services Commission is made up of four members, namely the President of the Court of Appeal, the Chief Justice, the Stipendiary Magistrate, two members appointed by the Governor as advised by the Chief Minister, and two appointed in the Governor’s discretion.
The Chief Justice, Puisne Judges, President of the Court of Appeal and Justices of Appeal are appointed by the Judicial Services Commission.
The Stipendiary Magistrate, Justices of the Peace, Registrar of the Supreme Court and such other appointments so specified in any other law are made on advice of and are disciplined by the Judicial Services Commission.
The Governor may ignore that advice with the Foreign Secretary’s approval if he/she considers that complying would prejudice Her Majesty’s service.
GOVERNOR’S COME AND GO
In this context the importance of a Governor’s term of office coming to and end can be measured, whilst our current Constitution is in place. Obviously, there is no guarantee that a new broom will sweep clean, but some change is always seen when a new Governor takes over.
A further important matter is that all ‘independent’ constitutional bodies, commissions, committees, and other institutions should maintain their independence by fully understanding that need and their respective functions.
In the meantime, a thank you and farewell to Sir David Steel. It is palpable that he has not had an easy ride, as illustrated, and emphasised, in the Chief Minister’s emotional farewell address.
Llanito World 