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.