£4.8 MILLION PAID BY GOVERNMENT TO LAWYERS (updated at 17:15)

A staggering £4,749,736.32 was paid to lawyers in private practice by the government together with government owned companies in 2023. Of that total, £2,803,091 was shared between Hassans and Isolas.

It is not clear whether the overall figure includes amounts paid in connection with the McGrail Inquiry, but there are clear indications that it does not, for example Charles Gomez & Co, the lawyers for Ian McGrail, are shown as having been paid nothing by government.

The amount paid by government to lawyers in private practice is over and above what is paid in salaries to lawyers directly employed by government.

There is a massive and urgent need to revise this expenditure with a view to making better use of lawyers employed directly by government for the benefit of all taxpayers.

BREAKDOWN

UK lawyers were paid a total of £571,113.36.

Local lawyers take the balance, namely £4,178,642.96.

Interestingly Hassans is shown to have been paid that year the sum of £1,365,178, Isolas £1,437,913.07, Triays £4,390, and TSN £217,529.50. Hassans, Isolas, Triays, and TSN are considered the ‘big’ four firms, despite which Triays received a derisory amount.

To help readers form any opinion, the amounts paid to other Gibraltar law firms in that year were, Cruz Law £247,533.54, Peter Caruana & Co £426,930, Charles Gomez & Co £0 (rather glaring), Jamie Trinidad £23,735.40, Attias & Levy £59,455, Philips LLP £20,085, Mr. J Rodriguez £38,050, and Benzaquen &Co £519,240.

Readers are left to reach their own conclusions from those figures. One might be that it is rather helpful, in terms of earnings, for a lawyer to be elected to Parliament.

POWER OVER LAWYERS

The impact on politics in Gibraltar of lawyers’ earnings is not a new phenomenon. As far back as 30 years ago, when the GSLP were in Government under Sir Joe Bossano, elements of concern were being expressed to the Foreign Office by the then Governor, Admiral Sir Derek Reffell KCB.

He reported that Sir Joshua Hassan had asked to see him. At the meeting Sir Joshua “… confirmed that [Peter] Montegriffo is about to announce his withdrawal from politics. He was clearly upset personally by the decision, which he said would put back democracy in Gibraltar by ten years.”

“Hassan explained that his law firm is dependent for a significant proportion of their business on clients pointed in their direction by government… the Government has continued to pass work to the firm, probably because the partners involved have done the work quickly and well.”

In a separate report:

“Apparently, the GSD’s good showing in a recent opinion poll indicating at the least that the GSD was on track to be the official Opposition, has prompted the partners … in Hassan & Partner, to present Montegriffo with an ultimatum- get out of politics or leave the firm. It appears that the firm themselves have come under some pressure from some members of the GSLP Government … to the effect that the Government may have to review the large amount of legal business they give to Hassan & Partners while the leader of the most effective opposition party is working for them.”

CONTROLS ESSENTIAL

A reversal of expenditure of public monies on legal fees is necessary, as well as how any such expenditure is distributed among different lawyers. A change is only possible with a deep reform in our constitutional system of government involving the introduction of proper checks and balances.

Those checks and balances will also help eradicate ‘preferred’ recipients of public funds generally. Especially those who are paid without any proper independent tendering, like amounts paid to lawyers.

In the case of lawyers, there is the added aggravation that it is a group that is, historically and now, disproportionately represented in Parliament and in Government.

ONLY ‘STATE SECURITY’ INFORMATION TO BE SECRET IN MCGRAIL INQUIRY

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.

NEW INQUIRIES ACT: POLITICAL OR PUBLIC INTEREST?

It remains to be seen whether, by passing the Inquiries Act 2024 [Act], GSLP-Liberal Chief Minister, Fabian Picardo, is putting his own, and his party’s interests, ahead of Gibraltar’s interests, as opposed to his assertion that “Mr. Azopardi [of the GSD] … has … put his own, personal, and party-political interests ahead of the public interest of Gibraltar.”

Mr Picardo has throughout argued that by the Act he is simply modernising the law and putting Gibraltar law on the same footing as UK law, whilst ignoring improvements that a Select Committee of the UK Parliament made in 2014.

Those improvements would have reduced the power of the GSLP-Liberal Government to throw a blanket of secrecy over aspects of the McGrail Inquiry.

UK LAW COPIED

In the last reply to The McGrail legal team he says, “… in making the new Inquiries Act, the Government of Gibraltar were simply copying the current state of UK law.” It is an absolutely accurate and truthful statement.

However, what Mr. Picardo does not say is that in 2014 a Select Committee of the UK Parliament (the House of Lords) suggested that 33 improvements should be made to the UK law. In ‘modernising’ the law in Gibraltar every one of those improvements are ignored, which rather contradicts that statement.

NO MODERNISATION

There is no modernisation there.

It is not there, because some of the improvements suggested in 2014 included that it should not be the government (in the UK Ministers) who decided whether to cancel or suspend any inquiry, or to keep private any part of any inquiry. Those decisions should be left to those undertaking the relevant inquiry. In Gibraltar that would be the Commissioner.

All those improvements have been left out of the Act. Accordingly, it is the Government that will decide what parts of the McGrail Inquiry will remain private and out of the public gaze. It would be self-serving for the GSLP-Liberal Government to use those powers, and so a conflict of interests.

UK NATIONAL PRESS

We will need to see what any requirements for privacy coming from the GSLP-Liberal Government might be, using the Act, now that the UK national newspapers, the Guardian, and the Times, have highlighted in articles last week and over the weekend what issues may be within the scope of the McGrail Inquiry.

Both newspapers highlight some matters that have not been pursued by the press locally. Those are now in the public domain. So, it would suit the Government for the public to be told that they do not reflect reality, would it not?

Mr. Picardo assures us that any decision about keeping matters secret will be taken by his GSLP-Liberal Government as a whole. The ability of the GSLP-Liberal Government to govern fairly and democratically will be put to the test by what it decides to do. If it chooses to keep certain matters private, people will wonder why?

‘PUBLIC INTEREST’ SHIFT?

One imagines that to the extent that those are in the public domain, following the reports in the UK press, the ‘public interest’ considerations that allow for privacy will have reduced considerably.

In contemplating that, a relevant matter under the Act that the government must consider is “the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern”.

The ‘public interest’ will surely now have shifted to the public being persuaded of who is telling the truth accurately. Namely, is what the UK press publicising accurately reflective of events that are within the remit of the McGrail Inquiry, or are they not? Public concern is running high on that front.

INQUIRY BEGINS SOON

The McGrail Inquiry hearings are set to start in public on Monday next at 10 a.m., so we shall soon know how events will unfold in terms of what the Government may dictate will be kept away from public gaze.

The more that is kept private, the greater the public speculation will be, and the more that people will question whether it really is the ‘public interest’ which is being served by any action of the GSLP-Liberal Government to keep matters away from the public gaze.

NOT ‘DIRECT RULE’ TO APPLY CONSTITUTION TO MCGRAIL INQUIRY

The growing desperation of the Chief Minister, Fabian Picardo, about the Inquiries Act 2024 [Act] and the McGrail Inquiry can be seen from his increasingly surreal accusations against the McGrail Inquiry team, and at a political level against the GSD Opposition.

It is a desperation further indicated by Mr. Picardo having already brought the Act into operation today. We shall soon see how he uses it.

Clearly the GSD has never sought ‘direct rule’, yet Mr. Picardo accuses the GSD of precisely doing that. Those claims show how fast Mr Picardo is paddling his feet under water to stay politically afloat.

OVERARCHING LAW

Gibraltar has an overarching law. It is the Gibraltar Constitution Order 2006 [Constitution].

If the Constitution provides that certain matters are in the exclusive jurisdiction of the Governor, then seeking the exercise of those duties by the correct institution is not to seek ‘direct rule’ as The Chief Minister accuses others of doing.

It is to seek that the Constitution is correctly applied.

We yet need to see if constitutionally the Act applies to aspects of the McGrail Inquiry that may fall within the exclusive constitutional ambit of the Governor.

PICARDO DESPERATE

Even then, the GSD has never sought that the Governor exercise any constitutional powers.

The GSD Leader of the Opposition, Mr. Keith Azopardi, sums it up with the words, “The problem here is that Mr. Picardo is so desperate to distract that he is willing to say anything about the GSD.”

There is no getting away from the reality that the privacy powers in the Act, to the extent that they do not tread on what is a reserve power under the Constitution, can be used by the GSLP-Liberal Government to protect itself and its associates from democratic public scrutiny.

Time will tell whether the Government will use those powers. Shifting the Government’s responsibility under the Act from Mr. Picardo to Nigel Feetham, Minister for Justice, is another distraction. They are both in the same law firm.

USE OF POWERS ARE AN ADMISSION

Only by not using those powers will the Government prove that it is not interfering with the public’s democratic right to know. Any use by the Government of privacy powers in the law will reflect badly on the GSLP-Liberals.

The likelihood that the powers will not be used is belied by the Government’s reliance on the ‘urgency’ procedure in the Constitution to pass the Act.

GSD ACTIONS

Even then, The GSD has on no occasion sought that there should be ‘direct rule’ over the McGrail Inquiry or any matter. GSD Leader has rightly dismissed that accusation as “complete and utter nonsense”. It is a retort that is fully supported by events.

The Chief Minister, as Mr Azopardi says, is an expert at spin and the tactics of misinformation to protect himself when “… his back is against the wall” and in order” … to distract from all… [in] utter desperation.”

At no time did the GSD say or do anything that crossed “… constitutional boundaries…” or was “… any step… deemed colonial”.

GSD DID SAME AS GOVERNMENT

The GSD did no more than what the Chief Minister had admitted having done himself: namely meet with the Governor about the Act.

If by that act, the GSD advocated ‘direct rule’, then surely the Chief Minister by admission did the same. As Mr. Azopardi puts it, “Is it all right for him to speak to the Governor but not for us to do so?”

TIME TO BE RID OF GSLP-LIBERALS?

As Mr. Azopardi further says, “The remedy is for the people … to get rid of this Government and speak through the ballot box whenever they next have a chance to do so.”

However, there is a need for people to step up to the political podium and put themselves up for election against the very comfortable position that both the GSLP-Liberals and GSD find themselves in now.

MCGRAIL INQUIRY TEAM

Over time one will see how Ian McGrail and his legal team will react to the recent events, and whether any steps will be taken within the Inquiry consequent on those circumstances.

For the present, one of the McGrail Inquiry team, lawyer Charles Gomez, is reported in The Gibraltar Chronicle as having said:

“The Chief Minister fails to understand the constitutional arrangements in Gibraltar which places the responsibility of preserving the peace and good governance of Gibraltar on His Majesty’s government in London.”

“We deprecate the notion of an imagined cosy relationship between the local government and London which can interfere with a citizen’s right to defend himself against the behaviour that we have seen emanating from the local government these past few weeks.”

“The Rule of Law trumps personal and professional or sectarian interest.”

“We shall continue to promote Mr McGrail’s interests fairly and proportionately.”

As events develop, we may see what is meant exactly by those words. Of course, if the Government allows that by not making the issue within the McGrail Inquiry ‘private’ as the Act now empowers them to do.

GSD SIDELINED IN MCGRAIL INQUIRY?

The GSD Opposition proved its ineffectiveness yesterday, when the Governor delayed the meeting with it about the Inquiries Act 2024 [Act], scheduled for 10 am. The Governor rearranged the meeting for 4 pm.

By then he had assented to the Act without change to emphasise the powers over the police reserved under the constitution to His Majesty or the Governor (see yesterday’s blog).

It is a point that may need clarification as indicated by the Inquiry Team in a Fact Sheet published yesterday, but hopefully in a manner that will not cause delay.

GSD BOYCOTT

There is no doubting that the GSD’s ‘ineffectiveness’ comes, in part, from the lack of a separation of powers as between the legislature and the executive government as Parliament exists currently under the 2006 Constitution.

However, that does not detract from the GSD having given up the chance to flex its political muscle by having boycotted the, by then, pointless meeting with the Governor.

PROTEST PRESS CONFERENCE

Instead, the GSD could have held a press conference to make the point that the Governor had sidestepped it and gone on to make the further arguments set out in the letter to the Governor.

The political impact of that would have been huge. Instead, the GSD has come out of those events like a jilted and unwanted lover. It raises the question, are they seriously in politics?

WAITING FOR BUGGINS TURN?

Or is Keith Azopardi, the Leader of the Opposition, and the GSD itself simply biding time to get into government as and when the electorate tire of the GSLP-Liberals by natural wastage.

If it is the latter, as a substantial number of voters suspect, democracy in Gibraltar is non-existent. We simply have a queue of those patiently waiting to govern as Chief Minister.

‘Patiently’ because in the case of Keith Azopardi it has been decades, including jumping ship to the PDP, and then returning to the GSD.

DEMOCRACY FRUSTRATED AS LEADERSHIP NEEDED

In the end, the GSD under Keith Azopardi is holding back democracy. Its antics yesterday in holding a meeting with the Governor ‘after the event’ is but further proof of that.

Do Damon Bossino and Roy Clinton not see that? Or do they both play second fiddle having lost leadership elections to the ineffective Keith Azopardi?

Democracy needs leadership. It gets none from the GSD as currently made up. If there is no internal revolt, the revolt will come from outside. Many voters are fed up with the current political players and so there will be a catalyst for change.

GSD MAKE VALID BUT INEFFECTIVE CEITICISMS

The GSD, if the Act applies to the McGrail Inquiry, is right in its criticism that the Act is “… an ugly and unsophisticated power grab…” two weeks before the start of the Inquiry. However, it is too little too late, coming after the event of Governor’s assent.

Further, the GSD said that the Inquiry engaged the Chief Minister, the Attorney General, the then interim Governor and the Government itself, and so were “mired in conflicts” and later that all those parties were “fundamentally conflicted.”

A reality mirrored in the statement in the GSD’s letter to the Governor which reads, “Simply put the chronology of facts and participants point to a conflict of interests that deprive this sudden desire for reform of legitimacy” rather than “… to weaponize him…”

The sadness is that it is too little without the impact of a protest.

INQUIRY FACT SHEET RAISES QUESTIONS

Interestingly the Inquiry Team in the McGrail Inquiry yesterday published a fact sheet. It contains two salient points.

One is, that the Act “… makes it clear that neither the repeal … or anything in the Act affects the ‘validity of any act or decision of the Commissioner under an existing inquiry’”.

Does that mean that, if the Act applies to the McGrail Inquiry, what the Commission has decided to be in the public domain will continue to be public?

Or can the Government issue a notice under the Act ensuring secrecy on those matters? The latter interpretation seems to be the more likely one.

The other that, “The Inquiry will invite submissions from Core Participants as to whether they disagree with the Government’s position that the Act automatically applies to the Inquiry.”

The Act provides that, it applies “… to an existing inquiry…” which would indicate that any objection would need to be on constitutional grounds outlined in the blog published on 21st March 2024, headlined, “Who is ‘the Government’ in the McGrail Inquiry”.

DELAY

Any such arguments could delay the progress of the McGrail Inquiry, which is something best avoided, but not at the expense of what is a central issue and/or interest of and in that Inquiry.

Similarly, a judicial review of any matter could delay the Inquiry if any party were to seek such a review.

Any lengthy delay would make the McGrail Inquiry futile, which would interest the Chief Minister, the Attorney General, the then interim Governor and the Government.

MCGRAIL INQUIRY IMPACTED BY NEW LAW?

Gibraltar has a new Inquiries Act 2024, as and when His Majesty or the Governor on behalf of His Majesty assents to it. The new law, if it becomes operative in the time laws usually do, could impact on the McGrail Inquiry, dependent on the Governor.

Those repercussions could have interesting constitutional connotations. The new law engages a potential conflict with the powers reserved to the Governor by the Gibraltar Constitution Order 2006 [Constitution] if it is not used within constitutional constraints or if it is used without the Governor’s support and agreement to such use.

ASSENT

The first hurdle, however, is Royal/Governor’s assent.

The Governor can withhold assent or reserve a bill under the Constitution for His Majesty’s pleasure if he, in his discretion, considers that it is “in any way repugnant to or inconsistent with” the Constitution, or if it is “in any way repugnant to or inconsistent to good government” or contrary to international legal obligation.

The UK Foreign Secretary may authorise the Governor to assent in any of those circumstances. A law does not come into operation until it has been published in the Gazette, which happens only after there has been assent.

GOVERNOR’S EXCLUSIVE POWERS

As explained in earlier blogs, the Governor retains certain powers, reserve powers, to the exclusion of Parliament (section 47, Constitution). Those include powers, amongst others, over internal security, and the police. The latter subject to the Gibraltar Police Authority.

Circumstances could therefore exist that a particular use of a law by ministers (the Government) may breach the Constitution, as a certain use is within the exclusive constitutional remit of the Governor, whilst the existence of that law itself does not, thus not allowing for a refusal of assent.

MCGRAIL INQUIRY IS UNPARALLELED

It would be an unprecedented step if the Governor were to exercise his constitutional muscle not to assent to defend his reserve powers. However, we are faced with unprecedented circumstances.

Those circumstances are that there is an Inquiry, established by the Governor at the request of the Chief Minister, into the retirement of Ian McGrail as Commissioner of Police, (the McGrail Inquiry): that Inquiry engages the police, a Governor’s reserve power.

In the face of that Inquiry the GSLP-liberal Government moves to pass the new law urgently in an attempt to grab wider powers over inquiries unto itself. Those new provisions purport to allow it to keep aspects of an inquiry involving the police secret; that use would be in breach of a Governor’s reserve power.

GOVERNOR’S AUTHORITY REQUIRED?

The reality is that the McGrail Inquiry, will likely look at matters that are not in the constitutional province of the GSLP-Liberal Government, under the leadership of Chief Minister Fabian Picardo.

If that is so, can the new law, when it comes into force, be used to supress certain matters from public scrutiny at the behest of the Government only? The answer to that must be a resounding “NO”, unless the Governor authorises the suppression of those matters from such scrutiny.

To the extent that engages matters in the exclusive constitutional jurisdiction of the Governor, or the Governor as advised by the Gibraltar Police Authority, those issues should not be impacted by the new law, but rather only by any directives of the Governor.

USE OF SPECIAL LEGISLATIVE POWERS

It is unlikely that assent of the new law will be withheld, but to avoid the impact of a conflict between the constitutional powers of the Governor and those of Parliament arising, the Governor could consider using his special legislative powers (Section 34, Constitution).

He would do so to ensure that the new law can be applied only in manner that does not interfere with the Governor’s exclusive functions and powers under section 47(1) of the Constitution. In that way the Governor can guarantee that its use will not be “repugnant to or inconsistent with” the Constitution.

He should simply emphasise, in the form of an addition preferably, that the entirety of the law must be read, applied, and be interpreted in any inquiry to comply with the Constitution. It is implicit, and so can be invoked, in any event, so there should be no objection to that from any quarter.

POLICE, INQUIRIES, AND THE GOVERNOR

The debate on the Inquiries Bill 2024 [Bill] continues in Parliament this afternoon with the formality of the Third Reading. What the overall lack of debate does, however, is highlight what may be a constitutional conflict, when inquiries dealing with matters that are in the exclusive constitutional concern of the Governor, as potentially the McGrail Inquiry is, are involved.

It is perfectly right for Parliament to pass laws, like the Bill, within the parameters of what is in its power, but can those same laws impact on what falls exclusively within the constitutional power of the Governor?

For example, “internal security, including … the police” come within the powers of the Governor and not the Government. The police powers of the Governor are circumvented by the existence and powers of the Gibraltar Police Authority [GPA]. Those are set out in the Police Act.

LACK OF OBJECTIVITY

The Bill, when passed into law, purports to grant the Government powers over aspects of the conduct of the ongoing McGrail Inquiry, established by the Governor at the request of the Chief Minister Fabian Picardo.

It empowers the Government (read Fabian Picardo) to keep designated parts of the McGrail Inquiry secret and away from public gaze if the Government considers it to be in the ‘public interest’. The lack of objectivity is palpable were any matter engaging the GSLP-Liberal Government and/or Fabian Picardo to be kept secret.

ASPECTS ARE EXCLUSIVELY A GOVERNOR’S RESPONSIBILTY

Surely to the extent that any matter being dealt with by the McGrail Inquiry is a matter of internal security or the police (to the extent that the Police Act does not impact on it), then the provisions of the Inquiries Bill 2024 will not govern that Inquiry, unless the Governor so determines.

It is a question that requires scrutiny of events as they develop. For example, if any matter before the Inquiry deals with interference in any police investigation, the execution of search warrants, arrests, or how arrests are prosecuted or not prosecuted, then surely none of those fall within the constitutional remit of the Government.

They rather fall in the constitutional remit of the Governor, as he may be advised by the GPA as permitted by the Police Act. Accordingly, the GSD Opposition should have raised in Parliament any concerns that it had on those matters. It did not do so.

CONSTITUTIONAL CONFLICT?

The constitutional issues that question raises are palpable. It is potentially a conflict between the powers of the Governor and those of the Government as composed by the Council of Ministers and the Governor.

Convention determines that the Governor does not intervene on a matter that is defined constitutionally to fall within the remit of the elected government. However, what if it falls within his exclusive constitutional responsibilities? He must surely impose his authority on that.

The deferral to the elected government on any such matter in the constitutional province of the Governor goes to the heart of what is one crucial element of constitutional British Sovereignty.

NEWS 21ST MAR 2024

WHEN IS MODERNISING GIBRALTAR’S LAWS A BAD IDEA? WHEN IT APPEARS DRIVEN BY A MAJOR CONFLICT OF INTERESTS

https://www.transparency.org.uk/when-modernising-gibraltar-s-laws-bad-idea-when-it-appears-driven-major-conflict-interests

DEMOCRACY OR PARLIAMENTARY AUTOCRACY?

The lack of true democracy in Gibraltar will be exemplified if our Parliament, dominated by the GSLP—Liberal executive Government, debates and passes the Inquiries Bill 2004 [Bill] unamended to disapply it to the McGrail Inquiry in its entirety. The question of Governor’s assent to it also raises interesting constitutional issues, as argued in yesterday’s blog.

If passed as currently drafted, it will apply to the McGrail Inquiry which has been running for two years under the present less intrusive law that does not permit the government to interfere as the proposed new law will allow if passed unchanged in every aspect.

In the time the McGrail Inquiry has been running, decisions have been made to allow public access and scrutiny of certain evidence. Those decisions could be reversed by the government exercising powers seized to itself in the proposed new law as the Bill is currently drafted.

PUBLICITY HINDERED?

We shall see if the freedom to have made those decisions will be reversed by the GSLP-Liberal Government, who are directly affected once the law changes abrogating more power to curtail publicity unto themselves.

If that is to be so the limited ‘democracy’ that exists in Gibraltar will have been used by the GSLP-Liberals to protect itself after the start of an ongoing event, namely the McGrail Inquiry. The lack of backbenchers in Parliament to defeat the government, or to change a law as it passes through Parliament will be seen clearly.

SELF-SERVING LAW

In the context of the ongoing McGrail Inquiry, the proposed new law, if used within that Inquiry, as it can be, is solely to the self-serving exclusive benefit of the GSLP-Liberals. It will allow them (subject to the constitutional powers of the Governor, as argued in yesterday’s blog) the ability to keep evidence that is ‘uncomfortable’ for them secret.

Decisions made with that objective would directly contradict any free, just, and fair decisions taken already by the Commissioner of the McGrail Inquiry on matters connected with public access to evidence and material before the Commissioner. The political consequences of that will hopefully be seen and understood by the voting public.

DEMOCRATISATION OF THE CONSTITUTION

We wait patiently on events as they pan out in Parliament. If the new law as set out in the Bill is passed into law unchanged, there will be direct proof of the undemocratic nature of our ‘parliament’. The use of quotation marks and a lower case ‘p’ is on purpose.

The writer of this blog has never believed that Gibraltar’s Constitution or Parliament is democratic. It contains no separation of powers between the legislature and the executive. The writer has never needed proof, but those who have sat on the fence may now get the proof that will convince them of the ‘democratic’ inadequacy of the 2006 Constitution.

INTERESTING TIMES…

Events as they unfold will also reveal to what extent the UK engages with its constitutional powers and duties. Will the UK assent to a law that can be used by the locally elected government to tread on matters that are constitutionally in the exclusive realm of the UK?

It is a subject that is analysed in the blog published yesterday. The Chinese saying “may you live in interesting times” comes to mind. The sadness will be if those “interesting times” prove that openness and freedom of speech and action, essences of democracy, are missing in Gibraltar.

WHO IS “THE GOVERNMENT” IN MCGRAIL INQUIRY?

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.