Wednesday, 14 December 2011







Friday, 2 December 2011

Here Ends this Blog

I consider that I have written about all that I wished to see happen in democracy and politics in Gibraltar for the present. I was a very early user of the World Wide Web for political purposes in the exercise of the right to freedom of speech. It cost me my position on the Financial Services Commission. There are now several Facebook sites dedicated to free political discussion, which provide the important venue for the voice of people to be heard and heeded. 

The recently published Manifestos of each of the GSD, GSLP/Liberal Alliance and the PDP contain in varying degrees political reforms that I have been advocating. This is good to see. I believe that, today, democratic politics in Gibraltar is in a better place than it was before this blog started. I hope that the manifesto promises are not cynical promises to be broken. 

Political parties should by now realise that voters will punish them for broken promises by exercising their rights to freedom of speech on the World Wide Web. The party that is elected into Government on the 8th December 2011 should remember that, as should all opposition parties who aspire to govern. The face of politics in Gibraltar and elsewhere is changed for ever.

I wish all the parties contesting this election the best of fortune. I urge them always to remember that they are each the servants of the people of Gibraltar. I pray that, in varying degrees depending on their respective roles, all will serve Gibraltar with the ambition of taking the collective that is Gibraltar always to a better place. Improvement is constantly available and possible. I pray that whoever is elected will put any bitterness and aggression that there may have been in the past behind them. I pray that whoever forms government will look positively to the future and govern to the best of its ability within the parameters permitted in a democracy and by the Rule of Law.

Finally, I will now quietly write the book that this blog has become. It may never be published but it will keep me out of mischief for several months. I thank all the readers and contributors to this blog. I never expected to get many readers. I wrote much of it to get my own thoughts off my chest for therapeutic reasons :) little expecting that I would average 1000 hits a day. I trust that I have provided a beneficial service to Gibraltar, although, some may not think so, I believe that I have. Thank you all readers, without you this blog would have been a sterile exercise.

However, for the next few days I will be giving my views on the election campaign on so see you all there. 

Sunday, 27 November 2011

An Illegal Air Terminal?

I have no doubt that Gibraltar's Air Terminal needed improvement. I also have no doubt that before spending 75,000,000 Euros, the GSD Government should have resolved Gibraltar's energy problems. Energy, in the form of electricity generation, is the lifeline of Gibraltar and its economy. No electricity equals no economy, today we are relying on skid or "emergency" generators. I have asked the question, how is this to be resolved, over and over again without a reply being forthcoming from any political party but importantly not the GSD Government who have been in power for the past 16 years. 

Now, to add to the issue of bad prioritisation of expenditure, I wonder how people will feel if I were to suggests that the new Air Terminal has been built illegally? That is what I will argue in this blog because it is a prime example of a lack of good governance in Gibraltar. It would be right to say that an argument of illegality on many projects could be made against most past governments of Gibraltar. There is now one major difference: the new Constitution. In the past Governors have had more power, under the new Constitution, the GSD Government have been the first Government to have had more power: with power comes responsibility.

There is a basic requirement under the British system of government that everything must be done according to law. This requirement applies equally to a government, by which I mean the executive arm of government. In Gibraltar (because we have a subsidiary Parliament) this means that an Act of Parliament is required to authorise a government to do anything. The additional layer to this rule is that "... government should be conducted within a framework of recognised rules and principles which restrict discretionary power." (Wade - Administrative Law 5th Edition). All of these are the core principles that underpin parliamentary democracy. It is the basis of the principle of Parliamentary Supremacy, which in Gibraltar is only curtailed by the Constitution. 

It is only by this principle of the Rule of Law that power flows back to the people through the medium of an election and so underpins democracy. It is only by the strict adherence to this most basic of rules that a government is accountable to the people who elect it. It is through parliamentary debate and questions that Minister are brought to account in a democracy. The only other remedy is recourse to the Courts because governments and Ministers are equally liable for injury as any citizen if they act outside their powers granted by  law. This is known by lawyers as acting ultra vires.

Let me now turn to the issue of the new Air Terminal. Armed with this very basic knowledge of Administrative and Constitutional law, which any lawyer worth his salt will know, I decided to research how the construction of the new Air Terminal had been authorised by law. Lo and behold I have discovered that there is no law that allows the Government to build an air terminal. It seems to have been built in exercise by the GSD Government of a power that it does not have in law. Its construction has never been authorised by Parliament. It seems to have been built on the basis of Ministerial diktat worthy of Soviet Russia or maybe even Franco's Spain.

Having come to this conclusion, I decided to consider the potential repercussions of this situation. The first, undoubtedly is that it undermines all the principles of democracy because it sidesteps the democratic safeguard provided by Parliament. The second is that it is palpable and incontrovertible evidence (if any further evidence were to be needed) of a breach of the 1996 GSD promise of open, transparent, accountable and democratic government. The third is an analysis of the potential financial consequences of such a huge mess.

In order to unravel this huge mess I went first to the new Constitution. Government Finances are dealt with in Chapter VII of the New Constitution. This deals with the requirement that all government revenues (except as authorised otherwise by an Act of Parliament)  have to be paid into the Consolidated Fund. No money can be withdrawn unless charged on the Consolidated Fund by the Constitution or an Act of Parliament or as permitted by an Appropriation Act. Neither the Constitution nor any other Act of Parliament charges the expenditure to construct an Air Terminal on the Consolidated Fund. Therefore this throws us back to an Appropriation Act.

Section 69 of the Constitution requires the Minister for Finance to prepare and lay before Parliament "... estimates of the revenue and expenditure of Gibraltar ...". It is this provision that founds the basis of an Appropriation Act, which is what authorises withdrawals of government expenditure. I went, therefore, to the Appropriation Act 2011. Sure enough, no mention of expenditure for a new Air Terminal, but there was an "Improvement and Development Fund" amounting to £95,887,000. One assumes that the cost of the new Air Terminal is included in this figure.

The question that then arises is, is this appropriation sufficient legal authority to permit the GSD Government to construct an Air Terminal? I can only answer this question with a "NO". First an Appropriation Act only authorises withdrawal of expenditure and not the doing of any act. Second, I would refer the reader to the words that I emphasised in bold in the immediately preceding paragraph. Only expenditure that is "... of Gibraltar ..." can be authorised by an Appropriation Act. How can the  expenditure on  the illegal and so ultra vires construction of an air terminal be " ... expenditure of Gibraltar ..."? It cannot be precisely because if it is illegal it is not "... for Gibraltar ...". If I am right (I believe that my legal analysis is correct), then, the inclusion of any expenditure in the Appropriation Act for the Air Terminal is an attempt to fund an unconstitutional act and so also illegal and ultra vires.

What are the repercussions of this illegality? In my view the first is that, under section 74 of the the new Constitution, the Principal Auditor has the exclusive and unfettered duty to audit and report on the public accounts of Gibraltar. An audit includes a requirement to ensure the legality and vires of any expenditure. In this regard those who have had anything to do with any illegal expenditure should bear in mind the provisions of section 68 of the Public Finance (Control and Audit) Act. This section makes any public officer personally liable for improper or illegal expenditure, if the Financial Secretary considers that it has been incurred negligently, carelessly or by the default of any public officer. Readers should bear in mind that Ministers are also public officers.

The second repercussion is that under the new Constitution the responsibility to ensure good governance in Gibraltar lies with the UK Government and is exercised through the office of the Governor. I ask myself, can it be good government to be governed outside the Rule of Law? If my argument is correct (I believe it is) it cannot be good government for the construction of an air terminal at a cost of 75,000,000 Euros to have been undertaken without the authority of a law. At the very least it undermines Parliamentary Supremacy and so democracy.

Sunday, 20 November 2011

Gibraltar- An Elective Dictatorship?

The GSD persist in advertising how well they have done over the last 16 years. The GSLP/Liberals and PDP, in stark contrast are taking the election, in part, to one place where it should be: the issue of good governance. Good governance is not about trusting who governs us, although that does come into play. Good governance is about many things. Primordially it is about systems built into the machinery of government that prevent or, usually, reduce abuse

Lord Hailsham, Lord Chancellor of England and Wales, in his 1976 Dimbleby lecture famously described the system of government in the UK as an "elective dictatorship". I believe that there is some truth in that statement but it exaggerates the reality, probably purposefully for effect. The UK has  democratic checks and balances, for example an element of separation of powers, an independent Civil Service and the truly free and very incisive press. Gibraltar has virtually none. The fundamental safeguard, namely the separation of powers simply does not exist. The phrase "elective dictatorship" is a perfect description of Gibraltar's system of government.

The one and only check on government that presently exists in Gibraltar is an election every 4 years. We are now at that juncture. Is re-electing the GSD a real option? I do not believe it is because the GSD is truly and exclusively at fault for Gibraltar's democratic deficit. In 1996 it promised reforms to improve democracy, accountability and transparency of and in government. It promised these reforms ostensibly to counteract the strong feelings, then running, against the GSLP administration. The GSLP at that time had failed to provide good governance. It seems to have been an election gimmick on the part of the GSD: the GSD has given us the exact opposite. We have been given no democratic reforms. Instead, we have been subjected to a form of centralised and authoritarian government that is not acceptable in a Western Democracy. 

The only brake on bad government in Gibraltar is the fear of losing an election. This brake will no longer work for the GSD if it is re-elected at the forthcoming election. The reason is simple: Peter Caruana has indicated that this will be his last election as leader of the GSD. The GSD has governed Gibraltar exclusively by and through Peter Caruana. Each reader can and will assess his manner of government over the past recent years. I believe it has been unchecked. It can only get worse, if he knows that he will not be contesting the next election, as the brake of fear of losing an election will no longer apply to him. It will not be a good place for Gibraltar to be at.

It is impossible to believe that the GSD will keep any promise about democratic reforms. It has promised these for 16 years and not delivered any at all. Why should it do so now when Peter Caruana will not need to face the electorate again? He has no incentive to do so. The argument that he will be forced to do so by his party is sterile. When has Peter Caruana been forced by his party to do anything? Not even his Ministers have ever succeeded on this front.

On the other hand the GSLP/Liberals and the PDP have grasped the issue of democratic reforms fully and are committing to major policies on this front. Will either deliver, if elected? Well, that is a risk that we all take on all promises by all parties when we elect one into government. What can certainly be said is that history shows that the likelihood that the GSD will deliver is very low. Not only has it not delivered in 16 years but Peter Caruana, if he does not stand again, does not have to fear being punished at the polls in 4 years time. On the other hand if either the GSLP/Liberals or the PDP get elected, then, they both do have to fear an election in 4 years time. Not delivering on central promises during a first term in office is frequently punished.

The argument for change in order to achieve greater democracy in Gibraltar is inviolable by the GSD's own making, namely, its omission to undertake any reforms on this front in 16 years. The counter-argument that we hear is the GSD boasting about how well it has done for Gibraltar during its time in Government. There is no doubt about this on several fronts, mainly providing stability within which the private sector has prospered. The private sector has provided the wherewithal by which the GSD has been able to do much of what it now boasts about: money. 

The issue is has it spent this money properly? Well I heard Peter Caruana on GBC rubbishing criticisms about the Theatre Royal, the electricity generating station and the sewage treatment plant, as though these were minor failings. This either shows that he has a total loss of perspective and judgment or that he needs to diminishing the importance of these failures precisely because these failures are so huge. The amount spent on the Theatre Royal was massive. The lack of a power station undermines the entirety of Gibraltar's economy and provision of power by skid generators is harmful to the environment. This failure adds to the possibility of having to resolve Gibraltar's energy needs by connecting to the European grid. The lack of a sewage treatment plant, aside from its adverse environmental impact, breaches international obligations. 

I want to know from the GSD what, steps, if it is re-elected, it will take, or has in mind to take, to find the money required to fund the construction of the power station and a sewage treatment plant. I want to know from the GSD in what time span it will resolve these huge problems for Gibraltar. The GSD has been in power for 16 years, so it has a duty to provide the electorate with these explanations, if it wishes to be re-elected. The GSLP/Liberals and the PDP do not have the same obligation. However, if elected, one or other of them will be left with a massive legacy problem to resolve, caused by GSD misspending. They both need to give these issues much thought.  If either is elected, it will fall on one or other of them to resolve these problems, despite that they have been caused by GSD failures.