It was good to hear the Chief Minister, Fabian Picardo, say about the McGrail Inquiry on GBC that, whilst it was “very likely” that restriction notices would be issued to suppress certain evidence from public scrutiny, that would only prevent public oversight of “a very small set of facts”. Those facts remain unidentified.
He went on to confirm that the “… very small set of facts is unrelated to … the live issues before the Inquiry, and will not, in my view, affect the public’s ability to understand absolutely everything that is relevant to the purpose of the Inquiry… “. A hugely important reassurance from the Chief Minister, albeit a subjective one.
SUBJECTIVE OPINION
The subjectivity of those statements is admitted with Mr. Picardo’s use of the words “… in my view …”.
It highlights a failing of the Inquiries Act 2024, which is reflected by criticism in 2014 from a UK parliamentary Select Committee of the English Act, which the Gibraltar Act copies. The Select Committees recommendations were not included in the Act applicable now in Gibraltar.
It is precisely that subjectivity, exercisable by Mr. Picardo’s Government, which brings into question any use in the McGrail Inquiry of any powers gained by the GSLP-Liberal Government by urgently having passed the Inquiries Act 2024. It relied on its inbuilt executive parliamentary majority to make that law.
The power of the Government to issue a restriction notice comes from that new law. It did not exist before. Mr. Picardo said, in the same GBC interview that “… none of the things that may be in scope for a restriction notice have absolutely anything to do with Fabian Picardo or Ian McGrail.” He refers to no one else.
STATE SECRETS
He has also clearly stated that people should understand that “Every state has information that it has to keep from other states.” The clear message is that the information to be kept private concern the public interest in the form of ‘state security’ and not the acts of individuals engaged in the Inquiry.
One assumes, therefore, that it will not be used to keep away from public scrutiny any actions or evidence before the McGrail Inquiry of or about, for example, either the Attorney General, Michael Llamas KC, or any evidence that will be given by or about James Levy KC.
ALREADY PUBLIC
It is evidence that, on reading the ruling of the Commissioner in the McGrail Inquiry given on the 9th November 2023, which is on the Inquiry website and summarises some of that evidence, would be difficult to fit into the category of being ‘state secrets’.
The reality is that some of it is already in the public domain, on the Inquiry Commission website, albeit in a summarised format, so that which is already public cannot be categorised as secret and accordingly withheld. What is at play is the truth and accuracy of what is known already.
So far as the Attorney General is concerned, the Gibraltar Chronicle reported, on the 26th January 2022, that he had discontinued the criminal prosecution of certain individuals, colloquially known as the Operation Delhi defendants, because it was not in the ‘public interest’ to continue it. The Attorney General may well not be obliged to explain, but it would be odd in the extreme if he could not explain what that ‘public interest’ was or is.
The report confirms also that the Attorney General acknowledged, at the time, that the Director of Public Prosecutions had advised that there was sufficient evidence to proceed to trial against those defendants, but that that was only one of two key tests, the second being the ‘public interest’.
PUBLIC EVIDENCE
In fact, the McGrail Inquiry Commissioner had already determined, before the new Act became law, that certain evidence should not be kept private. A summary of his ruling, of the 15th December 2023, can be found on the McGrail Inquiry website. The nature of what will be included in the Inquiry publicly is not yet known.
The Commissioner published the summary “… to serve the principles of open justice and ensure the public is appropriately informed of the work of the Inquiry”.
In that summary the ability of the Attorney General not to give reasons is confirmed. However, so is the right of the Commissioner to “… draw appropriate inferences”, although the propriety of doing so is something to be determined once all the evidence has been heard.
The Commissioner said, “The best course is to proceed and for me to hear the evidence and then consider what, if any, inferences I can properly draw.”
RULING FURTHER SUMMARISED
In the ruling, he rejected the application by the Royal Gibraltar Police [RGP] to redact certain documents to keep parts from public view. The evidence in those documents dealt with Operation Delhi (issue 5 in the Inquiry) and the Incident at Sea (issue 3).
‘Operation Delhi’ involved “The investigation into the alleged hacking and/or sabotage of the National Security Centralised Intelligence System and alleged conspiracy to defraud, and the RGP’s handling of the same, including but not limited to the RGP’s stated intention to execute search warrants as part of that investigation on 12 May 2020.”
‘The Incident at Sea’ relates to “The collision at sea on 8 Mach outside British territorial Waters involving an RGP vessel and resulting in two deaths, and the RGP’s subsequent handling of it.”
Separately, the Commissioner concluded that the Chief Minister’s application to keep various documents engaging Operation Delhi private should be dealt with as agreed, namely “… that all but eight of the redactions sought could be excluded on the basis of irrelevance to the Inquiry.”
NATIONAL SECURITY RISK
The Commissioner went on to say that he had ruled that:
“Of the remaining eight redactions to documents, I first considered the relevance of these documents and I concluded that although I would not need to consider the full extent of the evidence against the Operation Delhi defendants, I would need to examine some of the material. While some of the material was highly technical and unlikely to be relevant to the Inquiry, other material was highly relevant. I rejected the argument by the Chief Minister that disclosure of the material which was the subject of the application could present a national security risk, and therefore refused to make the restriction order sought, subject to a small number of redactions which could be made without diminishing public understanding.”
In time we will see whether any such decision already made by the Commissioner will be overturned using the powers given to the Government by the new law, especially in light that the issue of “a national security risk” has been objectively determined by him.
If any is, the probable subjective aspect of the decision will come to the fore, as objective decisions were taken by the Commissioner after hearing argument.
START DATE
The McGrail Inquiry is still scheduled to start this coming Monday. To date the start does not seem to have been delayed by the passing and coming into effect of the new law governing inquiries, or issues of its applicability to the McGrail Inquiry.
Hopefully, that long running saga will hit the start without delays. People are impatient and want to put the matter behind them. It is also important that what is a festering wound for Gibraltar, which has hit the international press, should start to be healed.
It is vital for Gibraltar’s international reputation that we put this matter behind us by dealing with them properly, with all issues surrounding Mr Ian McGrail’s retirement having been fully objectively inquired into publicly by the Commissioner, and with as little as possible being suppressed from the public.
Llanito World 