The newly published Inquiries Bill 2024 [Bill], if passed, will remodel the law on public inquiries, including the McGrail Inquiry, giving wide powers to “the Government”. The question is who or what constitutes “the Government” and in respect of what matters, specifically matters engaging the appointment and retirement of a Commissioner of Police?
GSLP-Liberal Chief Minister, Fabian Picardo, has also now publicly admitted that he will seek to use those new powers under the Bill to curtail public access to identified McGrail Inquiry contributions if it is in the ‘public interest’ to do so. He will need “the Government” to do that if the Bill becomes law as drafted currently.
The further question is, surely that gives rise to a conflict of interests? Mr. Picardo’s word, given in a GBC TV interview last night, that “the Government” will not act in his personal interests does not overcome any reality that objectively a conflict of interests exists despite his denial (see yesterday’s blog).
GOVERNMENT
The “Government of Gibraltar” is defined in section 45(1) of the Gibraltar Constitution Order 2006. It is made up of the Council of Ministers and “Her Majesty who is represented in Gibraltar by the Governor”.
Accordingly, His Excellency the Governor must participate in any decision that by law requires the approval of “the Government”. Those will include the powers that will be given to “the Government” if the Inquiries Bill 2024 becomes law.
FURTHER CONSTITUTIONAL COMPLICATIONS
The powers of “the Government” are curtailed by those exercisable exclusively by the Governor. One of those is “internal security including (subject to section 48) the police”. In that context it must follow that “the Government” is the Governor, surely.
Ian McGrail resigned as Commissioner of Police, so that is a matter constitutionally in the remit of the Governor, not the “Government of Gibraltar” unless section 48 of the Gibraltar Constitution Order 2006 provides otherwise.
Section 48 establishes an independent Gibraltar Police Authority. The Police Act governs the functions of the Gibraltar Police Authority.
The Commissioner of Police is appointed by the Governor on advice of the Gibraltar Police Authority, which he can ignore if he judges the appointment prejudices Her Majesty’s service. Therefore, that appointment constitutionally falls within the remit of the Governor, not the “Government of Gibraltar”. It is confirmed to be so in the Police Act.
POLICE ACT ADDITIONAL COMPLICATIONS
The Police Act 2006 further provides that a Commissioner of Police may be asked to retire by the Gibraltar Police Authority after consulting both the Governor and Chief Minister, but with the agreement of either of them. It is not yet known whether any process on this front was started by either the then Governor or Chief Minister.
The Police Act also reiterates that the Governor has sole overall, ultimate responsibility for integrity, probity, independence and matters of national and internal security. Are none of those called into consideration?
GOVERNMENT AND PUBLIC INQUIRIES
The Inquiries Bill 2024 refers to the involvement of “the Government” in many regards, including suspending or ending any inquiry, restricting public access and/or disclosure of any evidence or documents given, produced, or provided to an inquiry if it is in the “public interest”, as particularised.
The question that arises is whether “the Government” unilaterally can change the law to apply new considerations on an Inquiry convened by the Governor, albeit at the request of the Chief Minister, if that Inquiry essentially engages a matter that is constitutionally exercisable by the Gibraltar Police Authority under the Police Act and/or the Governor under the Gibraltar Constitution Order 2006?
If it cannot, then surely the McGrail Inquiry continues under the current existing law and not the Inquiries Bill 2024 as may be passed by Parliament, unless the Governor as advised by the Gibraltar Police Authority decides otherwise.
Llanito World 