‘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.

GOVERNORS URGE MOD ON GIBEXIT DEAL

In a notable turn of events seven ex-Governors write to The Times urging the conclusion of a Gibexit treaty following the recent high-level meeting on subject.

In that letter significantly they reassure the Ministry of Defence [MoD] of the support that Gibraltarians have for the UK military base on Gibraltar.

It is a message that carries the implication that it may be MoD concerns that could be hampering final agreement on Gibexit, due possibly to last minute demands coming from Spain, and which delayed an announcement after the last very high level ministerial Gibexit meeting.

MILITARY BASE

On the MoD they say, “Gibraltar fully supports British interests, including the military base.”

Later they repeat, “Gibraltar fully supports British interests, including the military base. Gibraltarians have always stood by the UK, and we must stand by them now by concluding these important negotiations.”

It is a statement of absolute fact that has been demonstrated for ever historically in Gibraltar, which the MoD should have at the forefront of their minds.

The open question is whether that absolute support will remain so resolute should there be no Gibexit treaty leading to huge suffering among the civilian population of Gibraltar. It is an eventuality best avoided.

COORDINATION OF SEVEN

The ex-Governors are, Lord Luce, Sir David Durie, Sir Francis Richards, Lieutenant General Sir Robert Fulton, Vice-Admiral Sir Adrian Johns, Lieutenant General Sir James Dutton, and Lieutenant General Ed Davis.

The question that pops into one’s mind is, who coordinated all seven of them to produce such a letter? It must be someone close to the Government of Gibraltar.

The letter fully supports the position of the Foreign, Commonwealth, and Development Office [FCDO] and urges the MoD to confide in us Gibraltarians. It is a hugely good and important development.

In that context, it is significant that the rest of the letter essentially follows FCDO and Gibraltar lines, as supported by our own GSLP-Liberal Government. In short it urges that a Gibexit treaty should follow.

TREATY URGED

They “… welcome the positive outcome of the recent meeting between, … the foreign secretary, his Spanish counterpart, the vice-president of the European Commission and the chief minister of Gibraltar.”

They go on to say, “It is important that this should now be followed rapidly by a UK-EU treaty…”, whilst respecting that “… the British Government assurance that it will never compromise on the Rock’s British sovereignty or the right of its people to self-determination… but all sides need to find a way forward that ensures that their economies continue to prosper.”

EU TAKE NOTICE

The EU should take careful notice of the need to avoid human hardship for purely Spanish nationalistic objectives. Its obligation is to ensure social and economic cohesion for the benefit of Gibraltar and its immediate hinterland, which is something that has been so throughout the period of the UK’s membership in the EU as a fellow member with Spain.

The Governors’ put it in terms that, “… all sides need to find a way forward that ensures that their economies continue to prosper.” Hopefully that will be the outcome. Politicians on all sides need to safeguard the economic and social wellbeing of hundreds of thousands of people.

GOOD GOVERNANCE VERSUS INQUIRY COST

Many miss the point by speaking of the cost of the McGrail Inquiry. The issue is not cost. The issue is good governance and good administration across the board involving independence and integrity, something that this blog continuously preaches.

Cost will become an issue if no remedial measures are put in effect, over a reasonable time, across government and the public administration arising from any lessons learnt from the final report in the McGrail Inquiry.

ADMINISTRATIVE INDEPENDENCE

Lots will come out in the McGrail Inquiry which will be applicable to much related to governance and the supposed exercise of certain powers through independent bodies. Are those bodies in practice so independent?

Gibraltar should not continue to be administered with a pretence of ‘independent’ bodies participating when reality most roads seem to point to No 6 Convent Place or thereabouts to other parts of the elected Governments from time to time.

FAILINGS NEED INDEPENDENT ASSESSMENT

If there are indications of failings by public officers or bodies to publicly administer properly, then independent assessment of those is central as are corrective action of anything that may be found.

It is especially so if there are constitutional or administrative bodies precisely to provide that objectivity and independence, like the Gibraltar Police Authority, Public Service Commission or Specified Appointments Commission, at a constitutional level, and many other statutory bodies.

GOOD GOVERNANCE

Good governance is not just about those who are elected going about their job. It is about democracy, which in turn is not just about elections every four years. It is about checks and balances at a parliamentary level and at all levels of administration, including an independent Civil/Public Service and independent public constitutional and statutory commissions and committees.

It is likely that much that will come of the ongoing Inquiry will not just impact on the various parties involved on the issues engaged. It will likely apply, with adaptation, to many other areas where the failings in independent thought and action from government are to be found.

WHO WILL ACT?

In terms of good governance and administration, the issue will become who, if anyone, will take any steps to improve those. The Constitutional duty for ‘peace, order, and good governance’ is retained by the UK.

However, it would be sad to see that the UK would need to step in and take appropriate actions. One would hope that those responsible at a local level, including politicians, would act. A failure to act, or a shortfall in taking any action, at a local level would show up a huge amount of political and administrative immaturity.

AVOIDING REPETITION

It is an immaturity that would come to attention and to the fore, if the UK was seen to be taking any steps to put right what may be found to be wrong, without that action being instigated, promoted, and actively pursued locally at a political level.

Constitutional, governmental, and administrative change, improvement, and greater maturity, preferably instigated at a local level, are the best remedy to avoid costs, such as those being incurred in the McGrail Inquiry, being incurred again in the future.

GIBEXIT POLITICAL DEAL ANNOUNCED

There is a Gibexit deal, pending finalising some detail, between the EU and the UK over Gibraltar, which both Gibraltar and Spain have approved. That is the overall message following a meeting today in Brussels.

“General POLITICAL LINES have been AGREED, including on airport, goods and mobility.” The message cannot be clearer. There was nothing else under discussion.

If there was any doubt those should be set aside by confirmation that “Negotiations will continue over the coming weeks TO CONCLUDE the EU-UK Agreement”.

The word used is “conclude”. The issues engaged must be matters that follow template arrangements in other treaties between other countries and the EU that pre-exist the Gibexit political agreement and simply need tweaking, otherwise today’s message would not be so certain.

Further, “This AGREEMENT WILL BRING CONFIDENCE, LEGAL CERTAINTY AND STABILITY to the lives and livelihoods of the people of the whole region, without prejudice to the parties’ legal positions.” Note the use of a capital ‘A’ in the word “Agreement”.

The Brussels meeting was attended by European Commission Executive Vice-President, Maros Sefcovic, Spanish Foreign Minister, Jose Manuel Albares, UK Foreign Secretary, David Cameron, and Gibraltar Chief Minister, Fabian Picardo.

GIBEXIT DEAL DONE

An unprecedentedly highest level Gibexit meeting has been announced for Friday to be held in Brussels. It follows hot on the heels of ‘The Times’ report that a Gibexit deal was imminent (see immediately preceding blog).

Tomorrow’s meeting is seen as seminal, with continued expressions of optimism from most parties, primarily and emphatically from Gibraltar Chief Minister, Fabian Picardo.

It is the level of meeting that would be expected when an important announcement is likely to be made. A Gibexit deal will be finalised.

TOP LEVEL BRUSSELS MEETING

The top-level Gibexit treaty meeting will take place amid increasing expressions of optimism about the probability of a Gibexit deal coming from all who are involved.

The meeting will engage Lord Cameron and Jose Manuel Albares, respectively the UK and Spanish Foreign Ministers, Maros Sefcovic, the EU Commissioner charged with leading the Gibexit talks, and Mr Picardo.

Mr Picardo will be accompanied by the Deputy Chief Minister, Joseph Garcia, the Attorney General, Michael Llamas (who has been in Brussels for a week), and the Chief Secretary, Glendon Martinez.

CLOSE TO RESOLUTION

GBC has reported that “The European Commission has indicated that negotiations on a future EU treaty for Gibraltar are closer to a resolution than ever before.” It is such a treaty that is referred to as a Gibexit Treaty or deal.

GBC has gone on to report that, “Maros Sefcovic said there’d been enough rounds of talks at a technical level, and it was now time to evaluate the progress politically… Friday’s high-level meeting is seen as make or break for the talks.” If it is not “break”, it must be “make”.

POLITICAL PROGRESS ASSESSMENT

The Gibraltar Chronicle quotes Mr Sefcovic as having said “I believe that we should now proceed with, I would say assessment of the progress on the political level.”

It goes on to report him, reflecting reports on GBC, as having “… described how negotiations over Gibraltar are sensitive and “technically extremely demanding.” [and that] negotiations have had a “constructive atmosphere”.” Saying that “the teams are working extremely well together.

He was at pains to emphasise that “As you know, we are negotiating with the UK. But… we are in very close contact with our Spanish colleagues.”

There is no room to doubt the huge involvement and influence that Spain has in the overall Gibexit negotiation. It is a reality that will greatly impact on any Gibexit treaty that may be finalised, as indeed will be the influence of Gibraltar’s views as expressed by those attending the Gibexit talks on its behalf.

UK RETICENCE – SPAIN’S

Reports indicate that the UK is also reticent to overly emphasise optimism.

The UK government does not reveal that a Gibexit deal is imminent, rather it suggests that Friday’s reunion will allow for further advance.

PICARDO’S BOLDNESS

Mr Picardo is reported as having said, “I am optimistic that the meeting on Friday will very positively advance matters and move us firmly into the territory for delivery of this treaty.”

He is also quoted in the Gibraltar Chronicle, “I look forward to engaging on treaty issues with different parties later this week, Gibraltar remains fully committed to secure a safe treaty that will govern our future relationship with the EU.”

He reassures all that he will not bring back a Gibexit deal that is not safe, but he expresses confidence “… that we may be able to agree a positive and constructive way forward… I know this will be very good news for people in Gibraltar and the whole region around us, as well as for the wider UK family, Spain and even the EU.”

HUGE HINTS OF A DEAL

What greater hint of an announcement can one get than all those positive pronouncements. An opposite conclusion could only give rise to the view that Mr Picardo had behaved irresponsibly.

The likelihood of major progress and the likelihood of a major announcement is also shown by Mr Picardo being accompanied to Friday’s meeting by such a high-level entourage from Gibraltar.

Spain has indicated also that there has been progress on important issues. It shows also that an announcement is probable.

ALBARES STATEMENTS

Reinforcing that conclusion, Europa Sur further today reports that Snr Albares has said on Spanish radio “Onda Cero” that the intention is to announce on Friday “a great agreement on general lines”, saying that “… each time we are closer to agreement on everything…”

He goes so far as to say, “The physical disappearance of the [border fence] is one of the agreements…”, and that it may come about before this coming summer.

HIGHEST LEVEL NEGOTIATION

A statement from the Government said, “It will be the highest level, multilateral negotiation ever attended by any Chief Minister of Gibraltar, and it reflects the variable geometry which has characterised such discussions ever since they commenced.”

It must also reflect the geometry needed for an announcement to be made. We must wait patiently for a little more than 24 hours.

GIBEXIT DEAL IMMINENT?

A story headlined “UK and Spain Inch Closer to Deal on Gibraltar” appeared in yesterday’s ‘The Times’. It has been picked up today in the Spanish local press, such as ‘Europa Sur’, ‘Olive Press’, ‘EuroWeekly’ and ‘Area’, with GBC interviewing the Chief Minister about it.

The words used in the piece are that we are “at a “tipping point””. Agreement or a deal on Gibexit, say those mysterious sources, is just seven days away.

Gibexit and “deal” refer to the anticipated arrangements for Gibraltar between the UK and the EU (which engages Spain) talks about which have been making the news for the past near on three years.

The McGrail Inquiry must not distract from other important news, especially Gibexit.

UK REACTION

The UK government has played down the potential for such an imminent Gibexit “deal”.

The only reaction from a senior British official reported in “the Times is, “… if a ‘deal’ is imminent, I can assure you that there would not be a ‘deal’ if it wasn’t to be in the best interests of Gibraltar”.

We have been here before but note “the best interests of Gibraltar”, not in accordance with the wishes of the people of Gibraltar.

CHIEF MINISTER

Meanwhile, on GBC, GSLP-Liberal Chief Minister, Fabian Picardo, giving ‘The Times’ piece some credence, has said today that he continues to be very optimistic on progress towards a Gibexit Treaty. He will not be drawn on any timing.

He emphasised, however, that there were no bilateral negotiations between Lord Cameron and Snr Albares. Perhaps not ‘negotiations’ but he cannot deny the reality of them meeting and talking.

It is those meetings between respective Foreign Ministers which is emphasised by Mr Picardo’s constant reassurance that there are continuous communications between the UK and Gibraltar, and that the Government has a veto on all the words of any Gibexit Treaty.

EUROPEAN UNION

The EU Commission Vice-President charged with Gibexit negotiations, Maros Sefcovic, is quoted in ‘The Times’ also as having said last week, “We are entering into a sensitive phase of the negotiation”. That does not support the conclusion that a Gibexit Treaty is imminent.

Despite those reports that same article goes on to inform that sources in Brussels close to the negotiations are saying that a Gibexit Treaty is “on the brink of” being signed but no actual source of that comment is revealed.

AIRPORT

It reports further that the UK Foreign Secretary, Lord Cameron of Chipping Norton, and his Spanish counterpart Jose Manuel Albares have discussed Gibraltar and advanced on the issue of Spain’s proposals over the airport in Gibraltar, Snr Albares having recently insisted that solutions must be found to Spain’s issues with Gibraltar Airport.

Reports had it that the UK had taken objection to Spanish proposals to resolve the matter made in recent months. It was that issue that was said to be delaying, not to write ‘derailing’, the talks.

However, as stated in ‘The Times’, what any such arrangements may mean for the RAF’s and other use of the Gibraltar airport remains unknown.

It seems that ‘The Times’ story depends to some degree on an unidentified Gibraltar government source having said, “The two sides have agreed that they are optimistic about a solution to the issue…” of the Gibraltar airport.

MORE NEGOTIATING

‘The Times’ piece reveals that a further meeting will take place between Lord Cameron and Snr Albares this week (despite Mr Picardo’s denials about bilateral negotiations). It is expected on Friday. They are aimed at finally overcoming UK objections over Spain’s involvement in the airport.

‘Europa Sur’ suggests that those talks are expected to be definitive, and that there is a UK counteroffer but gives no details. It says further that the UK has admitted a Gibexit Treaty will include Schengen controls for those arriving in Gibraltar. It suggests also that Snr Albares and Mr Sefcovic will meet.

However, it is at that meeting that the progress referred to in “the Times” is expected, but Gibraltar’s red lines, including those over the Gibraltar Airport, remain fixed, as repeated by Mr Picardo today on GBC.

Spain, according to ‘The Times’ reacts to this attitude as “quibbling” and being “penny-wise and pound foolish”.

BRITISH SOVEREIGNTY

Sir William Cash, Chairman of the House of Commons European Scrutiny Committee, is quoted on subject by ‘The Times’ extensively. He expresses reservations and concerns surrounding the defence of British sovereignty, which are central to that issue as raised in ‘The Times’.

He is quoted as having said:

“I was disturbed to hear… that what appears to have been agreed in principle between the UK and the EU with regard to Gibraltar would include EU Schengen border checks being performed in Gibraltar, Gibraltar aligning with EU rules to ensure a so-called level playing field, they say and joint UK-Spanish management of Gibraltar’s airport, and therefore, defence issues. If so, what the government has agreed… crosses its own negotiating red lines as first set out to my committee in 2021.””

Sir William is one of the most anti-EU MPs in the House of Commons.

SPANISH REACTION

‘The Times’ acknowledges Spain’s desire to ‘sell’ any Gibexit deal internally on the basis that arrangements over the Gibraltar Airport amount to British sovereignty being diluted, and so reinforcing its territorial claims over time.

Further that a Gibexit deal will support and promote the economic state of the Campo area. It is wholly accepted in this part of Spain that the economic downturn of no Gibexit deal will be calamitous in the immediate Spanish vicinity.

RESTRICTION NOTICE CURTAILS MCGRAIL INQUIRY?

So, on the eve of the start of the McGrail Inquiry, the Friday before the Monday, the Government issues a restriction notice [Notice] “…relating to a small and very limited number of references to the National Security Centralised Intelligence System…” [NCIS]. The Press Release about the Notice [Press Release] must be commended for its fullness and clarity but falls foul of lacking objective source.

It augurs well, for a hearing going forward, that even the restricted material will be heard privately by all the participants in the Inquiry and can be reviewed in full and fully considered by the Inquiry in its findings.

Accordingly, on the face of it, it is difficult to judge that it will curtail the Inquiry. It seems to just keep certain limited matters to a very restricted group of people. Events may tell a different story however.

All that of course if the Notice falls within the constitutional remit of ministers and not that of the Governor, and so has legal effect. After all it deals with ‘internal security’, which is a matter for the Governor under the Gibraltar Constitution Order 2006.

THE NOTICE

Details of what the Notice covers cannot, obviously be, and have not been, given publicly, as that would defeat its very purpose. Accordingly, none appear on the Press Release.

The Press Release says, it has been issued “… solely in order to protect and avoid the risk of considerable harm to what the Government considers to be vital public interests of Gibraltar of both a security and wider nature, including its economic interests.”

SUBJECTIVITY

The criticism that the Government retains the subjective power to make that judgment remains, however. The whole system would be better served if an independent person, the Chairman of the Inquiry, for example, would be empowered to take the decision.

The position was precisely that before the law was changed just days ago. The amendment was made contrary to the recommendation (in the UK) of a 2014 Parliamentary Committee. It is a change that leaves a bad taste in the mouth, or at least a bad whiff in the nose.

IGNORED BY THE NOTICE

The Government has confirmed in the Press Release that none of the restricted information in the Notice relates to, the Chief Minister, his actions or inactions, or any matters which have been alleged against him, or his status as a partner (on sabbatical) of Hassans.

It does not concern any factual dispute between him and Ian McGrail, or any information which by restricting it would protect the Chief Minister in any way or help him on matters that the Inquiry is inquiring into.

The secret information also does not relate to Ian McGrail, his actions or inactions, or any other matter alleged against him or any factual dispute that he has with the Chief Minister.

It does not relate to any partner of the law firm Hassans.

It does not relate to any matters of controversy referred to in the public exchanges on the Inquiry.

36 NORTH – BLAND

In this context it is important to remind ourselves of bits that are in the public domain. One bit is the whole 36 North-Bland controversy, which is publicly known to have involved the operation of contracts in Gibraltar related to NCIS. Mr. Picardo has admitted publicly that the partners of Hassans own 33% of 36 North, and that he is a partner on sabbatical.

The Inquiry is poised to fully investigate that affair as it has a bearing on Ian McGrail’s decision to retire as the Commissioner of Police and as fully set out in the Inquiry’s List of Issues.

It resulted in three arrests, all three being charged, and then the being released by the Attorney General using his constitutional power to discontinue criminal proceedings. Those powers were used in the public interest, despite that evidence to prosecute existed according to the Director of Public Prosecutions.

SECRECY

In fairness, as far back as 24th March 2021, GBC was reporting the Chief Minister, in answer to questions in Parliament, had said that some services provided by Blands “… were so sensitive, he could not disclose these publicly.”

The consistency of the Chief Minister’s present position is supported historically, therefore.

ADVERSE INTERNATIONAL PUBLICITY FOR GIBRALTAR

The sadness of all this sorry affair is that it, including adverse international press coverage, could all so easily have been avoided by the GSLP-Liberal Government not changing the law at the last minute.

The likelihood is that international press coverage of the Inquiry will increase as the interest of the international press has now been pricked.

SUSPICION AND MISTRUST

The Minister for Justice, Nigel Feetham has said, that the issue of restriction notices “… was rightly a decision for the whole Government to take, fully appraised of information relating to our national security and our common, public interest. Ministers are collectively accountable to the electorate and Parliament for the consequences of this decision.”

However, senior members of the GSLP-Liberal Government are intricately involved in maters surrounding the McGrail Inquiry. Consequently, it is the objectivity of that Government taking those decisions, changing the law to assume power to itself, and using it, that has aroused suspicion and mistrust.

The suspicion and mistrust is hugely magnified when matters of security had already been ruled on by the Inquiry itself, after hearing argument from the Government’s own lawyer, yet the Government considered it necessary to urgently change the law to take power unto itself and to use it on the very eve of the Inquiry.

HUGE LAWYERS’ FEES: PICARDO’S BROKEN PROMISES

Drastically to reduce the cost to the public purse of fees paid to private law firms, and, importantly, the commitment not to favour the firms of politicians, are two obviously broken manifesto promises made by the GSLP-Liberal in the 2011 elections that are worthy of being remembered.

Yesterday the huge cost, in the sum of £4.8 million in 2023, to the public purse of wealthy lawyers in private practice was highlighted on this site. The amounts paid to firms with current and some past politicians featured embarrassingly high. A full record of payments made can be seen there.

THE PROMISE

The 2011 manifesto promise is best set out in full to avoid any political attempt to wriggle out of it. It stated:

“PRIVATE LEGAL WORK”
“We believe that the Government’s legal work should primarily be handled by the Counsel employed in HM Attorney General’s Chambers.”
“Here we will increase the number of Senior Crown Counsel.”
“Where the necessary expertise is not available “in-house” it should be outsourced.”
“The process of outsourcing legal work must be done fairly and equitably – and legal work must not be given to one or another set of Chambers who may be close to one Minister or another.”
“We will ensure that all legal services procured from the private sector for Government provide value for money, are provided by practitioners with recognised expertise in their field and…”
“… are evenly spread throughout the legal community.”

Let us begin from the end, but reference should be had to what is written on this subject in yesterday’s blog.

BROKEN PROMISES

Can the conclusion be reached that government legal work has been “evenly spread”?

The answer can only be a resounding “NO”.

Many lawyer’s are not mentioned, amongst those who are, it is significant that Charles Gomez & Co got £0 in 2023, and Triays, one of the ‘big four’, only got £4,390. It should not be deduced from that statement that expenditure should be more evenly spread. The efforts should be to reduce it, as promised in the GSLP-Liberal Manifesto.

Can the conclusion be drawn that the public has got value for money, and have been by those with “recognised expertise”? Has outsourcing been fair and equitable?

Those questions are unanswerable objectively, but each reader can reach their own conclusion after considering the blogs of yesterday and today. It is significant that firms with politicians (both in and out of government) seem to do better. A historical check of public figures will show that this is a hugely prevalent reality.

Has the very specific promise that, “… legal work must not be given to one or another set of Chambers who may be close to one Minister or another” been kept?

Well one must wonder! Hassans (£1,365,178) and Isolas (£1,437,913) received the bulk of fees paid from the public purse in 2023. It was a total of £2,803,091. Both those firms had senior ‘partners on sabbatical’ as ministers in 2023. Peter Caruana & Co (£426,930) and TSN (£217,529). Both those firms had senior ‘partners on sabbatical’ as minsters in past administrations.

Have the GSLP-Liberals increased the number of Senior Crown Counsel in the public service?

The increases in those during their years in office are palpable, as is the employment of lawyers in different departments. It seems, however, that has served to increase, not reduce, reliance of the government on private sector lawyers.

It has also served to greatly increase the cost of the provision of legal services to the public sector, which is not calculated into the figure publicised for private sector assistance. Senior public servants should have the training and experience to rely on their own judgment and be less dependent on lawyers.

The promise was that “Where the necessary expertise is not available “in-house” it should be outsourced” but why has nothing been done to reduce that cost?

It is obvious that the engagement of more lawyers has not served to reduce the cost. It seems to have upped it!

A WAY FORWARD?

What may go some long way to solve it is a study of what areas of specialism is most needed, and the consequent employment of lawyers in those fields. If that is five, then at an annual salary of a respectable £200,000, which is needed to compete with employment in the private sector, the public purse would still be saving a huge amount!

Outsourcing would then be directly to specialists in vastly more limited fields that are available only in the larger jurisdiction that is England. Even then, that should primarily be in the form of carefully obtained legal opinions that will allow much follow on work to be done locally.