Tuesday, 28 December 2010

The Civil Service and Protection under the Rule of Law

There is no single definition of the phrase "the rule of law".   In essence, it encompasses the principle that no one is above the law and that  there is a requirement to act in accordance with and within the law.  Any discretion has to be applied within those confines.  The rule of law is a central foundation of democracy.

The mention of issues concerning the rule of law conjures up visions of complex legal courtroom battles fought between senior lawyers in front of senior judges.  This happens but the reality is not that at all.  A first line of protection for citizens is the civil service.  Civil servants have an onerous task to ensure that citizens are not only treated within the law but also in accordance with fundamental rights.  It is only when a Ministers or  a public officer or servant gets something wrong that resort can or would need to be had to legal process that may end up in a court room.

The core values that govern civil servants when serving the public are succinctly set out in the Civil Service Code of the UK.  They are integrity, honesty, objectivity and impartiality.  Each word carries a heavy weight of responsibility for and imposes an onerous burden on each individual civil servant.   It is the responsibility of  each civil servant to meet these high standards but each individual one should be and needs to be supported by the hierarchy of the service and by built in  systemic safeguards.  It is far easier for the body of civil servants to institutionally provide the support within which these standards can be met than for each individual civil servant to face alone the pressures that they may meet.  Each core value is defined.  A brief explanation of each will show the high threshold that has to be met and the consequent pressures faced by civil servants.

In defining integrity, emphasis is put on responsibility, professionalism, the retention of confidence, ensuring proper and efficient use of public money and resources, fairness, efficiency, promptness, effectiveness, sensitivity, use of best ability, accurate record keeping, accurate handling of information and compliance with the law and the administration of justice.  Additionally, the misuse of a position, acceptance of gifts, hospitality or benefits in manner that may reasonably be seen to be compromising or the unauthorised disclosure of information are forbidden.

Honesty invokes truthfulness, requiring the correction of errors at the earliest opportunity and the use of resources solely for the public purposes for which they are made available.  Deception of anyone or succumbing to improper pressures or the prospect of gain are forbidden.

Objectivity requires the provision of evidence based  accurate information, advice, options and facts, the taking of merit based decisions and the heeding of expert and professional advice.  It is wrong to ignore inconvenient facts or relevant considerations or to frustrate the implementation of policies.

Impartiality requires fairness, justice and equity and forbids acting in a manner that either favours or discriminates   against individuals or interests.  It requires service to the incumbent government whilst maintaining political impartiality, the attraction and retention of confidence of incumbent Ministers but in manner that will not undermine the ability to establish a similar relationship with other incumbents at a future date and compliance with restrictions (which are not absolute but may require permission) on political activity.  It is forbidden to act or use resources in a party political fashion or permit personal political views to interfere.

In the small jurisdiction that Gibraltar is, individual civil servants are more susceptible to be pressured to be more subjective and possibly to cut corners in contravention of these core values.  A strong hierarchical system is needed to give support to such an individual when he requires it.  This, together with security of tenure, provides the core defence against the wearing down of standards in public office.  The first port of call for any civil servant with concerns about his ability to meet these core values is his immediate line manager or head of department.  Thereafter there must be further resort available to a higher authority either by the line manager/head of department or the affected individual civil servant.

The recent retirement  of Richard Garcia MBE as Chief Secretary has left a vacancy that needs to be filled with another strong personality.  The person occupying the position of Chief Secretary is sure to be a likely port of call in defence of these core values.  Abolition of this post should not be within the realms of possibility.

Should the Chief Secretary be the final port of call, however?  In the UK, civil servants have recourse to the Civil Service Commission if a reasonable response is not obtained at any earlier juncture.  The 2006 Constitution continues the existence of a Public Service Commission to deal with certain aspects of the public service. One of those is not to act as a final port of call for civil servants dissatisfied with any response to a complaint arising from compliance with the core values.  This is another area in which legislation could fill the gap and improve democracy in Gibraltar.  A civil service that meets the core values is an essential element to deliver democracy in Gibraltar, especially when  recourse to the courts is restricted by cost and the non-availability of legal assistance to the vast majority of the population.

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Friday, 24 December 2010

Some Thoughts on Llanito World's First Anniversary

Well on the 21st December Llanito World was one year old and coincidentally this is my 100th blog! I hope readers have found it stimulating, certainly some of the pieces have resulted in lively and heated discussion. I do not expect and have never expected agreement, what I have looked for (and I believe I have found)  is debate.  I have striven for new angles and fresh thoughts on old subjects.  I have tried to be critical of political hypocrisy.  I have attempted honesty and tried to uncover contradictions.  I hope I have had a measure of success in this. 

To those who I have angered, perhaps self examination might be one answer.  There has been no intent on my part at being destructive.  All criticisms and suggestions are aimed at hopefully people becoming more constructive and thus taking our small territory, Gibraltar to a better place, not with my thoughts only but with the comments that these stimulate.  Some have clearly understood this, regrettably others have not.  I trust that some positive thought will lead them to make a New Year's resolution that will help them deal with the Llanito World philosphy next year.  My message is that I will not be frightened or threatended into silence.  I will stop writing this blog voluntarily and only if and when I feel like stopping.

I believe that I have covered a great variety of subjects.  I think that the Andorra issue is more than well publicised now.  That issue should not distract our politicians from the wider issues that affect Gibraltar.  The liklihood is that next year will be an election year.  This means that the political debate has to be widened and deal with issues that go well beyond the eternal Spanish problem.  Let us not forget that it is not our problem.  It is Spain's problem.  We need to live side by side and with Spain; other than for that consideration, it is not for us to find a solution to Spain's quest to recover Gibraltar and achieve what it views as territorial re-integration.

Our politicians should concentrate a little on helping more those who are less fortunate in society.  This government and past governments and those who work in this difficult vocation have done a lot for this group.  I undertand that but I think that Gibraltar's small size should allow and enable the introduction of a more focussed and personalised social services system.  Such an approach would deal with people's circumstances more specifically and in a more tailor made manner.  I speak with no great knowledge, just anecdotal knowledge gained from social and professional interaction with people.  I would welcome the views of those who are more knowledgeable than me on these matters.  I think a society can be measured by how it deals with the less fortunate.  Any improvement in this will reflect well on Gibraltar as a whole.

One issue that is of great concern to me is Gibraltar's energy policy.  It seems settled that received wisdom is that Gibraltar should be self sufficient in its production of electricity.  I have a more radical view, believeing that in a Europe where sharing and integration of electricity grids is becoming more common, Gibraltar could participate in that sharing.  There should exist a contingency plan to cater for any emergency that may arise in the supply.  What is clear is that how Gibraltar's needs for electricity are presently met need improvement and modernisation.  A new power station was promised and has not been forthcoming yet.  Hopefully it soon will be.  The secondary but equally important consideration is the EU requirement that a significant proportion of this power should come from sustainable sources.  This is a challenge that our politicians should not shirk from meeting.  They need to ensure that our technocrats come up with a solution.

Well there you are some bits and pieces on Christmas Eve.  Let the onslaught begin!  Whatever your political beliefs, principles and ideals I wish you all a great and happy Christmas.

Saturday, 18 December 2010

So the GSD Consider that a Sovereignty Change is a Possibility?

Are you confused by the arguments? Andorra is not shared sovereignty? Andorra is not joint sovereignty? Andorra is shared sovereignty? Andorra is joint sovereignty? Andorra is independent?

These are all questions that have been answered differently by different people. Some of these attempt to support and justify the Chief Minister's surprise assertion in Seville in which he signified possibly favouring an Andorran style constitutional status for Gibraltar. Others oppose and criticise him. What is salutary and interesting is that different concepts of "sovereignty", beyond the emotional aspect only, are at last being debated.

The reality is that there is no definitive answer to these questions. The answer is in the eyes of the beholder. There may not be a definitive answer but there are some certainties. I will attempt to identify some.

There are two princes in Andorra in whom ultimate sovereignty is vested. Fabian Picardo in his Chronic piece identifies those powers contained in the Andorran Constitution that are vested in these two princes. I do not intend to repeat them here. They simply do have powers. Like it or not this renders Andorra a joint sovereignty. Jamie Trinidad in his own piece in the Chronic tries to lessen the emotion in the argument by avoiding the use of the words "joint sovereignty" and alluding to "shared sovereignty".

What Jamie does,he is right on this point, is to emphasize that Andorra is considered by the international community to be an independent state with a representative in the UN. He argues that this, conjoined with the vesting under the Constitution of power in the people of Andorra, is such a diminution of the control shared or possessed jointly by the co-princes that it is not a hugely forceful or relevant consideration. This analysis is legally correct but, unfortunately, it suffers one insurmountable problem: political, geographical and power play realism.

What do I mean? First the simple consideration that Spain's claim is not satisfied by an arrangement similar to that of Andorra. Spain's claim is for territorial reintegration. This is not satisfied by esoteric and medieval concepts of co-principalities. Spain is geographically closer to Gibraltar. Spain is more powerful than Gibraltar on the international stage. These factors are only counterbalanced by real (not symbolic) British sovereignty.

In any event were Spain to agree it, what safeguard would Gibraltar have against its use of the residual power of the princes to advance their claim? Jamie suggests that one safeguard would be that the princes would be empowered in their personal and not national capacity. One would have to be naive to the extreme to believe that such a promise would reflect realities.

This opinion is clearly garnered from viewing the proposal from the perspective of Gibraltar. Viewed from the perspective of Spain and Britain, the panorama quickly changes. Spain's "prince" would be motivated by the national interest of Spain to reintegrate the territory of Gibraltar into the Spanish state. The British "prince" would be 1300 miles away without the same national interest drive that the Spanish "prince" would be motivated by. Certainly, acting in his personal capacity, the British prince would not have the power of the British government and its international standing supporting him for the benefit and protection of Gibraltar.

Additionally, the enormous differentials in size and international clout between Spain and Gibraltar cannot be ignored, nor can the reality of Spain's historical emotional reaction to Gibraltar. The size issue is presently neutralised by British sovereignty and the UK's responsibility to look after Gibraltar's international affairs. No real changes can occur by a negotiated arrangement without a substantive change in emotions and attitudes. Nationalistic considerations will come to the fore, both in Gibraltar but more importantly in Spain. These could undermine the viability of any arrangement in the international status of Gibraltar.

Where I simply get lost is trying to reconcile the Chief Minister's assertion, in the same speech in Seville, that independence is not an option for Gibraltar yet his suggestion of possibly introducing an Andorran style constitution is defended in the grounds that it is independence? The Chief Minister said in the Chronic "Andorra is a sovereign independent state ..." The only manner in which I can try to reconcile these arguments is on the basis that the application of a similar status to Gibraltar will fall short of independence in some manner that would placate Spain's claim to territorial reintegration. This matches the Chief Minister's reticence to ask for independence with resolving the Spanish concern that Gibraltar is not part of Spain's national territory by application of an appropriately modified Andorra model. If I am wrong then perhaps the Chief Minister can clarify that the GSD party's policy is to seek eventual full independence for Gibraltar.

It is also odd that not a single GSD Government Minister has been heard to comment publicly on whether or not the suggestion is acceptable to them. When will we hear from any of them? Do they each not have a view on such an important and fundamental issue such as this? Surely they each do, the electorate deserves to know what those views are. It is not enough for a party to advocate a policy of independence for Gibraltar yet hide behind the mantra "... only if the people of Gibraltar want this ..." Where is leadership in such a policy? My view, I simply do not consider that independence is an achievable or desirable goal ... so, as I have said in the past, leave well alone, we are doing just fine and only need minor governmental and electoral reforms to reduce the democratic deficit.

Sunday, 12 December 2010

Constitutional Rights- Is there a need for a Citizens Advisory Service?.

The existence of constitutional rights and freedoms is irrelevant to most citizens unless breaches of these can be cheaply and easily enforced. Gibraltar has historically been fortunate in that the European Convention on Human Rights has been incorporated as law in Gibraltar since the 1969 Constitution. The 2006 Constitution enhanced the position by correcting certain omissions in the 1969 Constitution. Gibraltar in this regard has been more fortunate than the UK in as much as the UK did not achieve a similar status until 1998 when the Human Rights Act was passed.

For those who do not know the rights contained in our Constitution, they are extremely wide ranging. They range from rights that in todays world in Gibraltar have become irrelevant to some that are extremely relevant. I refer primarily to rights like the protection of privacy, the protection of law, freedom of conscience and religion, freedom of speech, freedom of assembly and association, freedom of movement and protection from discrimination.

The ability to enforce these rights and freedoms is what is important, unfortunately the reality is that the cost of doing so can be prohibitive. There are alternative and cheaper routes available, which whilst not ideal, citizens should bear in mind.

The primary enforcement provision contained in the Constitution allows access to the Supreme Court of Gibraltar. The Supreme Court has wide powers to act in the event that it holds that there has been an infringement of any right. In reality, however, this redress is not easily accessible by the general public. usually it would involve the engagement of a lawyer, first to advise, second to guide any applicant through the procedural maze and then to argue the legal issues on his behalf. The expense involved in this is substantial. In addition an applicant is faced with the risk of an order to pay the other parties costs should the Supreme Court decide that his application should not succeed. all this has a major deterrent effect.

Legal assistance is not readily available save to the seriously impecunious. This itself could in the right circumstances be a denial of the right to the protection of law, if it can be shown to be a denial of a fair hearing within a reasonable time. The circumstances in which such a plea would succeed are, unfortunately, limited.

If no alternative remedy is available,these rights and protections can, due to the complication and expense of enforcement, be an irrelevance in the event of anyone suffering from a breach of any of them. Fortunately we live in a society that in the main voluntarily applies these basic rights and protections, so breaches are infrequent. If one suffers from a denial of a right or protection, there alternative avenues for redress available.

The first and obvious step is to familiarise oneself with the rights and protections. This is easily done by reading through Chapter 1 of the 2006 Constitution, which can easily be found online. Secondly, one should bear in mind that these provisions are of general application as are all other laws. Most situations where a denial of rights occurs or is provoked can be remedied in discussion. If that fails, avenues for formal or informal review are usually available to a more senior individual or tribunal, be it in the context of a public authority or within ones employment.

In addition the availability of recourse to the Ombudsman should not be underestimated. This is available when the denial is by the government, most statutory bodies, public utilities and contractors and certain other bodies like Calpe House and Bruce's Farm. The Omdudsman has wide powers to investigate and report on complaints, the effect of which on the affected organisation should not be underestimated.

Personally, I believe that additional recourse should be made available by an organisation that takes it upon itself to advise and help citizens when failures or denials of constitutional rights and protections occur. The creation of such a body would greatly enhance the ability of persons not only to understand their rights but also to have a cheap option to dispose of any complaint that they might have. Perhaps a free citizens advisory body staffed by volunteers would be one answer. There are enough young lawyers who should be willing to provide such a service. Advisory service of this type are widespread in the UK. Any volunteers? I am happy and willing to help to organise one.

Thursday, 2 December 2010

Where Is Gibraltar Now?

At the end of March 2006 the UK and Gibraltar Governments announced that agreement had been reached on a new Constitution for Gibraltar providing for a modern relationship between Gibraltar and the UK. This new constitution enshrined enduring British sovereignty, whilst we in Gibraltar so wished that to continue. The text also confirmed, for the first time, Gibraltar's right to self determination. This recognition was tempered by the reservation, on the part of the UK, that independence was not possible without Spain's consent. Weakly Gibraltar expressed its disagreement to this constraint, in my view, a disagreement that is unenforceable in practice. Importantly, it was confirmed (in the preamble) that this new constitution provides for that degree of self government which is compatible with British sovereignty and the fact that the UK is responsible for external affairs. What does this mean?

If Gibraltar wishes, as it does at present, to remain under British sovereignty with the UK responsible for its external affairs, then there is no scope for increased self government. The door to any further negotiation with the UK to expand the powers of Gibraltar's Parliament and its Government has been firmly closed by the UK. This has been endorsed by the Gibraltar Government's acceptance of the new constitution and, more significantly, by the referendum in 2006 that adopted that constitution.

We can argue for ever that the new constitution delegates all the necessary powers already. I am not an adherent to this opinion, not least because in the Chagos Island's case the Judicial Committee of the Privy Council held that the words "... for the peace, order and good government..." are words that limit and restrict the power of a legislature in a British Overseas Territory, which is what Gibraltar continues to be. Additionally, more blatantly, because the UK has power, under the constitution, to impose direct rule . If anyone doubts that Gibraltar is a British Overseas Territory (not nation), that fact is declared and confirmed in the Despatch to the new constitution.

When one conjoins that the UK has closed the door to increased self government with the UK's view that independence is not an option without the consent of Spain, there is little room to achieve a changed status, which is what the Chief Minister said he aspired to, without Spain's consent. This is an especially valid argument for those, like the GSD, who preach the belief that the new constitution and its acceptance in the 2006 Referendum was an exercise in self determination, because it most certainly cannot be that unless and if it devolves the maximum unconstrained power to Gibraltar.

Thankfully all this actually leaves Gibraltar in a place where I believe most want it to be. We are able to legislate and govern ourselves without interference, so long as our Parliament and government do not transgress the requirement that it be ".... for the order, peace and good government of Gibraltar ..." If there is any attempt to transgress these limitations we have the safeguard that the UK as power to interfere or more appropriately the courts can be requested to consider the circumstances. Additionally the UK is responsible and obligated to look after our external affairs and security with the safeguard that there will be no change in British sovereignty without our consent.

Why oh why, then, do some of our politicians harp on and on about further changes to our status? "Leave well alone" is my mantra. If in the future there is a change in our collective opinion we can re-look at our various international relations.

What about Spain? Well it is Spain that claims sovereignty, so it is a Spanish problem. It is not "the Gibraltar problem". Gibraltar is happy in the main. Spain can read the new constitution just as well as anyone else. It knows what it should do. Convince future generations of Gibraltarians to change their minds, if they can and if Gibraltarians ever will change their minds. One thing is certain Spanish harassment, like incursions in the bay, put any potential for advance of their case back by years; many in Gibraltar will say excellent, keep it up Spain!

What those self-same politicians should be concentrating on is doing their jobs, which is to govern Gibraltar. It is not to strut the international stage to boost their egos and pretend that they are important international statesmen. They should also concentrate on improving those parts of our institutions that remain untouched by the new constitution, briefly, to deliver more accountable democratic and transparent government ... and, oh yes another thing, to improve the lot of the Gibraltarians, especially the less privileged amongst us.

I know who will get my vote. The party who not only promises to do this but which provides guarantees that it will actually do what it promises. What if none of them make me that offer? Well I will exercise my right to vote by casting a ballot paper without a single cross on it.

Sunday, 28 November 2010

Am I Dishonest - the Andorran Constitutional Model Debated?

Yesterday, I was accused, on the Llanito World Facebook page, of being disingenuous and dishonest because I posed a question about the Andorran model floated by the Chief Minister in a forum in Spain. The question suggested that it was a model based on joint sovereignty and that the GSD were advocating the possibility of this joint sovereignty model for Gibraltar. I stand by those assertion, which I will show are sustainable. Significantly, I am not alone in having come to this conclusion. Other news media and individuals have also done so. I accept that this alone does not prove that I am not being dishonest but it does go some way to show that I came to a reasonable conclusion.

The accusation of dishonesty on my part is false and so malicious. To accuse someone of being dishonest is a serious accusation. Perhaps that individual should reconsider carefully what he has said. He bases his accusation on two grounds, first that the post-1993 Andorran constitution does not amount to joint sovereignty (although he soon starts to resile from this position) and secondly that it is not the GSD that supports it because it was only the Chief Minister who said that "he" would support the Andorran model.

My question, that posits opposite conclusions, is not only highly supported by the facts but is so reasonable as to render the accusation made of me unjustifiable. Normally I would let something like this go by without reaction but it is such a blatant attempt at political dissembling that I consider that it is essential to set the political record straight. At the same time readers will gain an understanding of what the Andorran model is and thus come to their own conclusion.

The relevant constitution can be read at www.andorramania.com/constit_gb.htm. It is title III (I have also published it in full in the Facebook page) that deals with the fact that the Head of State (Cap de Etat, translated as "Head of State" at the foot of the Constitution) are jointly the Bishop of Urgell (Spanish) and the President of France. In Britain and in Gibraltar the Head of State, the sovereign, is the Queen. If there is a joint Head of State, namely joint sovereigns, that equates to joint sovereignty. For those who are interested the powers of the joint sovereigns are listed in article 45 and include matters that relate to general elections, referenda, sanctioning of laws etc.

One counter-argument that I will immediately pre-empt is that under article 3 sovereignty is vested in the people. Absolutely right in a parliamentary democracy. What this is, is the use of the word sovereignty in its different meanings. It is this vesting of governmental authority in the people that allows Andorra to claim sufficient democratic "independence" to permit them a place in the UN General Assembly. It does not detract from the description "joint sovereignty" in relation to who are its Head of State. Article 3 simply reflects the reality of any democracy.

What the Chief Minister has suggested is not independence under the British Crown, which is what all the Commonwealth has. He has suggested independence under joint sovereignty with Spain. Spain's involvement must have some significance, otherwise it is a pointless suggestion. What one significance is, is preciseley that sovereign power does not emanate from one sovereign source, the British Crown, but jointly from two, namely the Spanish Crown and the British Crown. This is not an insignificant concession to joint sovereignty because it is on this joint source that democratic governmental authority is founded and which will have certain constitutional functions, including safeguarding democracy. It is this source that in a crisis is decisive of the future. Do not forget the intervention of the King of Spain when the military challenged democracy in Spain just 30 odd years ago.

Then we have the attempt at divorcing the suggestion of its leader, the Chief Minister, from the party, the GSD. There is one huge, I would suggest nearly insurmountable, difficulty in doing this. The Chief Minister is responsible for foreign affairs and relations and he has made the suggestion in a Spanish forum. How can his party deny him? Additionally, leaving aside but not ignoring, the all pervading and persuasive personality of the Chief Minister that infects all the policies of the GSD, this contention can only be supported if the party denies its leader. To date it has not done so. If the party denies its leader on such a fundamental issue can he continue to be its credible leader? That is not for me to decide. It is for members of the GSD to do so and then for the electorate to judge the result of that debate. If they do not deny, they will be seen to have adopted his, the party leader's, suggestion.

Placed in these contexts my question about joint sovereignty and the GSD is a reasonable and proper one for me, and others, to pose. Certainly an accusation of my being disingenuous and dishonest is completely unwarranted, false and malicious. I trust the person who made it will put it right. If not, I am prepared to be judged by the court of public opinion. I trust that equally he is also so willing.

Friday, 26 November 2010

Opinion Poll: an Analysis.

One thing that has been shown to be accurate by the opinion poll in today's Chronic is that I was not wrong in my analysis contained in the piece "Does the GSLP/Lib Alliance have the Will to Win?" which I wrote as far back as the 21st October 2010. Reliance upon a government losing an election is not sufficient to win it. Any political party wanting to win an election must work hard at it. The GSLP/Lib alliance is simply not doing that. Whether or not one supports one or other political party is not the issue. If any political party is not at risk in an election from an opposing political party what suffers is the quality of democracy. If the quality of democracy suffers then society is all the poorer for it.

There is no doubting that the opinion poll results show the GSD ahead. There are a few facts surrounding that poll and the spin surrounding it that merit some thought and analysis, however. These are mine.

We are told that a similar sample of face to face interviewees was polled on this occasion as was polled in April 2010, when the Chronic undertook its last poll that so much favoured the GSLP/Lib alliance. I am sure that this is true but what we are not told is how the sample of interviewees was selected on either occasion. Why is this important and relevant? Quite simply because if the sampling is not done scientifically, the results of any consequent opinion poll can be skewed in one direction or the other. It is generally known that some polling stations favour one party rather than the other. If the sample is chosen, in the main, from a polling station catchment area that favours the GSLP/Lib alliance then the poll result are more likely to show a result that favours the alliance. The opposite is also true.

Without knowing how the sample was chosen there is no way of assessing how accurate either this poll or the one undertaken in April 2010 was, save for one factor. A month after the April 2010 opinion poll Panorama published a poll, the results of which closely resembled the April 2010 Chronic poll. Anecdotally, this would be indicative of the accuracy of the Chronic April 2010 poll, especially as the Panorama poll samples from all polling station catchment areas and more closely follows the anonymity of an election by using the postal services. We will see if Panorama now carries out another opinion poll.

The Chronic goes some way to attempt, self consciously, to explain the enormous (and most unusual and uncharacteristic, in such a short period) swing in favour of the GSD that has so drastically gone against the GSLP/Lib alliance. One statement it makes is that "Six months is a lifetime in politics". This is a taken from Harold Wilson's famous statement that "a week in politics is a long time" and so it is. I do not believe that the factors that the Chronic points to in justification of the massive swing support the contention that a lifetime has gone by in the last 6 months. Where I fully agree with the Chronic is on the failings of the GSLP/Lib alliance that I highlight in the opening paragraph of this piece.

Another point of contention that I have with the Chronic is its assertion that one should discount the "don't knows" because these are excluded in an election. This is a false assertion. In an election there are no "don't knows". There are "don't votes". There are people that do not vote at elections, which is different. No one was asked in this poll "will you or will you not vote", that is a completely different proposition to someone who says "don't know who I will vote for when the election comes round".

"Won't votes" are not the same as "don't knows" in an opinion poll. "Don't knows" have been asked but do not wish to commit at that particular moment. Many of them are likely to vote in an election. The reasons why the "don't knows" poll in that way are many and varied but many of these people are open to be convinced to vote one way or another at an election. It is these votes that are considered to be the floating vote that can so easily change the course of an election. It is these votes that each of the parties are fighting for during an election campaign and prior to it in two senses first to get them to vote and second to have them vote for your party. The other voters are already decided.

Mathematically the GSD, on this last poll, are 8% ahead. This lead can be eaten up in a trice from the "don't knows". Many "don't knows" are shy because they may not wish to identify that they would not vote GSD. There is more likelihood that an opposition party will pick up the "don't knows" than a governing party. Although this is far from being a given and its is these votes that have to be hard fought. The GSLP/Lib alliance are not fighting hard enough.

Monday, 22 November 2010

Could the UK Resist Bilateral Sovereignty Talks?

In the last week Peter Caruana and Julio Montesino Ramos (a Spanish diplomat who attends the Trilateral Forum) have spoken in academic events in Algeciras. Peter Caruana has emphasized that Gibraltar has an undertaking that the UK will not attend bilateral talks with Spain under the Brussels Accord without the consent of Gibraltar. His take on this is that it leaves Spain only the Trilateral Forum within which to discuss Gibraltar issues. A huge problem results because this forum, we are told by the participants (so termed by Spain, in lieu of "parties"), is not about sovereignty it is about cooperation, whilst, as we all know, the problem is not one of cooperation, it is about sovereignty.

The UK's position on Gibraltar does not warrant that it should be doubted. Its commitment not to transfer Gibraltar's sovereignty to Spain is frequently repeated publicly and enshrined in the preamble to the 2006 and the earlier Constitutions. It will not betray it. The undertaking not to hold bilateral talks on sovereignty under Brussels seems to be a reflection of this commitment.

The other side of the equation is, that despite Gibraltar's reservations on the issue, both the UK (most recently in the Despatch to the 2006 Constitution) and Spain consider the Treaty of Utrecht to be extant and to be the foundation of British sovereignty of Gibraltar. If this is the position, and it is difficult to see how a treaty that is constantly given life and affirmed by its two signatories can be denied, then ultimately the issue of sovereignty is a bilateral one. What cannot be denied also is the substantial and undeniable recognition that the UK has given to the people of Gibraltar.

It is a recognition that Spain has been forced to accept and take into consideration in pursuing what it considers to be its unalienable claim to sovereignty of Gibraltar. Recent pronouncements by Ministros de Asuntos Exteriores have been conciliatory and attempt, with careful use of language, to take into account the existence of and views of Gibraltar. Hence, this is one of the factors that has eventually resulted in, what Spain describe as, the Trilateral "foro de dialogo".

So where does it leave the situation? Well, essentially, where the new Spanish Ministro de Asuntos Exteriores has said. It leaves everyone, for now, with the Trilateral Forum as the softening up process by which Spain hopes to show Gibraltar that a change in sovereignty is not so adverse to Gibraltar as is thought. A difficult if not impossible task but a path that Spain has to tread. When it has trodden that path, whether successfully or not, the question will remain, in short, what about sovereignty which is a bilateral issue? It is a claim that Spain has in the face of British Sovereignty vested by treaty in the UK.

If Spain wants to talk about sovereignty, would the UK seriously be able to resist, at least, talking to Spain? Perhaps the hint is in what Julio Montesino Ramos is reported as having said: "Issues of sovereignty should be discussed with the United Kingdom at a bilateral level in the so called Brussels process ... but it could have any name. There must be a bilateral negotiating process which is ,logically, seperated and independent from the forum". What happens if and when Spain insists? Could the Trilateral Forum survive such an eventuality? If not, what is Gibraltar doing there at all?

Thursday, 18 November 2010

Ex-Prison Inmates: Condemned Forever or Rehabilitation?

Gibraltar likes to boast about the enormous improvements that we have seen in the last quarter century: beautification projects, affordable housing, growing economy, state of the art air terminal, dual carriageways, tunnels etc. Is this the only way that we should be measuring our success as a community? I think not. One of the most important criteria by which a community should judge itself by is how it treats its less fortunate members. There are many in Gibraltar. I would like to concentrate on one group ex-prison inmates.

Ex-inmates have been punished by serving their term of imprisonment. On release, the main problem that they face is not finding anyone who is willing to employ them. Having a job helps to give a person an identity, to become self sufficient and to start to regain his dignity. It boosts self confidence and esteem. Without a job the person feels worthless and unable to fend for himself and his family. The likelihood of re-offending increases and in a large majority of cases becomes an inevitability. The result is a return to prison and the awful cycle begins again.

There is no doubt that these persons often do not help themselves. This is not a reason that the doors of employment should be closed to them. It is more reason to make a greater effort to help them into employment and provide them with the necessary support so that they can remain in employment. Easier said than done? Yes, of course but that is an argument to make a bigger effort to help them not to ignore them. Often these recidivists are the product of difficult family circumstances coming from broken homes, with a history of alcohol or drugs abuse at home etc. They need a leg up and they need understanding, and guess what, Gibraltar has the advantage that the problem in numbers not being that big, so it should be possible to give personalised and targeted help.

Is there a solution? Certainly my information is that most ex-inmates seek but cannot find employers who will take them on. The will exists on their part to work. What they need is the opportunity. If employers do not volunteer the openings, then some encouragement or cajoling is required. We are not talking of highly qualified individuals. We are talking, in the main, about persons who can be employed as labourers or unskilled workers on construction sites or in the service sector.

How does one encourage or cajole an employer to employ ex-inmates? The government offers the private sector a large amount of business. I am sure it is not beyond the realms of possibility to use this as an incentive for employers in the private sector, mainly in the construction sector, to employ some of these ex-inmates. It cannot and need not be a condition for being eligible for tendering for government contracts but it would not be difficult to make it widely known that this might be well looked upon in deciding who a contract will be granted to. This is especially relevant now at a time that the government has announced that it will be spreading construction work more widely amongst local companies.

It is important that having been to prison should not be seen as a fast track to employment. This is a question of careful management but the numbers involved are not so large as to warrant such criticism of a scheme to help ex-inmates into employment. Every successful re-integration of an ex-inmate into society by giving him gainful employment brings with it the benefit of one less repeat offender. In turn this reduces the cost to society on many fronts, not only the cost of imprisoning the individual over and over again but also the cost to victims of crime by reducing the number of repeat offenders.

It may seem an unachievable ideal. Undoubtedly the suggestion is open to ridicule and criticism but we are a small enough community that is sufficiently wealthy to try it and keep trying it until it works for one person, then a second and then for many more. We would lose very little and we would gain another measure by which our community could be judged as a caring and better community than others.

Saturday, 13 November 2010

Age of Consent

I have been asked to write on this subject because arguments have now been heard in the Supreme Court. I have already done so in the past, on the 18th April under the headline "SEX" and on the 17th May under the headline "SEX and Danny Feetham, Moroccans and Mohamed Sarsi". Both these pieces are still available on this site.

The point that I would add to the views that I express in those to two pieces is that the referral gives rise to, at a political level, constitutional confusion. Constitutional confusion because the referral of the issue to the Supreme Court blurs further the principle of the separation of powers. It is already non-existent as between the Executive and Legislative arms of government. They are now being blurred between both these arms and the Judiciary. I would add immediately that this is happening through no fault whatsoever of the Judiciary.

A member of the GSD Government and so the Executive and Legislature, the Hon. Danny Feetham MP, put, in the recent past, the question of the different ages of consent, between heterosexuals and homosexuals, to Parliament in the form of a Private Members Bill, which the Bill intended to equalise. The Bill was defeated. The law remained unchanged; that should have been (unfortunately, in my view) the end of the involvement of the Executive and Legislature until and if that matter returned to them at some future date for reconsideration.

The reality is that it was not the end of their involvement. In its wisdom the GSD Government, which makes up the indistinguishable Executive and controlling element of the Legislature (because it is the majority party in Parliament), decided to promote and pass a law giving jurisdiction to itself, exercisable by the Chief Minister, to put constitutional questions to the Supreme Court of Gibraltar. One effect of this law is that it involves the Judicial arm of Government in legislative matters at the behest of the Executive. The result is that we have the Executive questioning the decision of the Legislature, which it controls with its majority, before the Judiciary. What regard does this pay to the principles of the separation of powers?

The Judiciary now has to decide whether Gibraltar's Legislature has or does not have to pass a law to ensure compliance by Gibraltar with part 1 of the 2006 Constitution, essentially European laws on human rights. In doing so, if there is a finding of incompatibility, the GSD Government will have castigated and shown itself up for not ensuring compliance and wrongly for having defeated Mr Feetham's Private Members Bill, when it had been entirely within its power to pass it and thus ensure compatibility. This is very different from a similar finding resulting from an individual citizen or a special interest group having brought the same question before the Judiciary.

Thankfully, the Chief Justice has wisely and astutely decided that the decision of what is the appropriate age is not one for him to decide but one for Parliament. This has avoided adding to the constitutional confusion that I write about. I am sure that there are many waiting to see how this issue evolves. What is clear is that the whole exercise, of taking the issue for decision by the Supreme Court, is costing the taxpayer (us) a large sum of money to decide something that is the responsibility of our politicians, who are paid by us to do so, to decide. They should be grown up enough to decide for themselves at no cost to us.

Sunday, 7 November 2010

Trilateral or Bilateral: No Matter, Sovereignty is the Issue.

On the 24th October, 9 days before the Chief Minister went to Madrid to engage in technical talks within the Trilateral Process, I wrote :

" The whole dispute over territorial waters only concerns sovereignty... Consequently, how is the issue of the waters surrounding Gibraltar going to be the subject matter of the next round of the Trilateral Process at Ministerial level, with the Chief Minister participating, without these discussions necessarily including a discussion on sovereignty of the waters and thus not being just about cooperation? ".

An analysis of events on the 2nd and 3rd November show how accurate this assessment may have been.

On the 3rd November an exploratory meeting was held by the Chief Minister with Alfonso Lucini, Spain's new director for Europe. At this meeting it seems the Chief Minister made clear the Gibraltar Government's view on territorial waters. This was followed by the adoption by him of a negotiating position that would seem to be impossible to achieve without affecting the viability of the Trilateral Process. The Chief Minister confirmed that he would need to be satisfied that British sovereignty and jurisdiction would not be diluted over territorial waters before any agreement on these could be progressed.

A seemingly impossible position because of the diametrically opposed positions of each side on this subject and despite the diplomatically phrased statement that the parties would, on that subject, " ... try and seek a mutually acceptable way forward in the coming weeks". In brief, on the issue of territorial waters no formula to progress matters was found, it was a failure, possibly marking the end of cooperation on this subject. Yet, despite these occurrences, it was confirmed that discussions on all other issues would continue. How long will it take for the subject of sovereignty to encroach on other items that are on the agenda?

First impressions are that that Spain accepts that the Trilateral Process is about cooperation and not sovereignty, which is the position adopted by the Chief Minister. Is there really agreement on this fundamental (for Gibraltar) principle? If there is, sovereignty will not encroach on other matters to be discussed. Is Spain's position as uncomplicated as that, however? Certainly Spain's new Foreign Minister, Trinidad Jimenez, on the eve of the Trilateral Process talks, confirmed that agreements reached within this process would " ... benefit the population on both sides of the fence without entering into sovereignty discussions." It would seem that Spain and Gibraltar are both on the same page. A deeper analysis of this very statement and others, made by Ms Jimenez on the 2nd November, is indicative that this may not be the case.

She has said that the "discussions" to be held would not be about sovereignty. I have already discussed, in the earlier piece referred to below, my view that this would seem impossible, if the subject to be discussed is the territorial waters. In addition, she has not said that the agreements that may be reached will not have sovereignty implications, just that the "discussions" would not concern sovereignty. Her additional affirmations to the Spanish Parliament are indicative that the Trilateral Process is not viewed by Spain as sovereignty neutral.

She said that the objective of the Trilateral Process is " ... to generate enough confidence to renew bilateral talks about Gibraltar's sovereignty with the British Government". In brief that it is a softening up process. A softening up process is not a process that Gibraltar should be cooperating or participating in. It is and has always been in the sole gift of Spain to behave civilly toward Gibraltar. If they have failed to do so in the past it is entirely in their sole power to put that right. If they do, then they may or may not reap the benefits in time.

Then, in the same breath, the Spanish Foreign Minister goes on to say that the Spanish national objectives on the issue of sovereignty " ... could not be modified as this is a consequence of the defense of Spanish national interests, which are above situations and people." Yes, above people, in brief that people, presumably the people of Gibraltar, cannot stand in the way of Spain's national interest. Why then should the people of Gibraltar involve themselves in this softening up process? Let Spain behave towards Gibraltar civilly and time may tell a different story.

I invite readers to read, once again, my earlier piece "Tripartite Process: Is it about Cooperation or Sovereignty?", in the context of these recent events. You can each decide, then, whether the Trilateral Process should continue. Please bear in mind at the same time, whether you really believe that this process has delivered anything to Gibraltar or whether it will in the future deliver anything. It may be that all it does is undermine the fundamental, which is sovereignty. It may also weaken Gibraltar's case in any negotiations that may ensue on this subject in the future, not losing sight that it is Spain's desire to resume bilateral negotiations on sovereignty in the future.

Tuesday, 2 November 2010

Democracy, are Elections Alone Enough?

A lively debate ensued, in the main, between two commentators to my last piece, Brown Cow and Ghost on the subject of democracy in Gibraltar. Democracy is an enormous and complex subject that cannot be covered in this blog in any detail but it is worth exploring some issues of concern in Gibraltar.

Brown Cow briefly raised the subject that democracy was about not just outcomes but more importantly about process. She points to lack of information in the public domain and secrecy in process as being the main contributors to speculation and the undermining of confidence in the system of government. She argues that in the absence of a system that in some ways emulates Local Government in the UK, elected every 2 years and performing their functions in public, Parliament does not provide the necessary checks and balances to democratise small decisions that affect individuals directly. In brief that Parliament is too high a level of government to adequately protect individuals from small decisions that affect them directly. This situation can be contrasted with that which prevails in the UK where the process at local government level provides for this and that any outcome that may affect an individual directly can be infulenced by lobbying and by participation in the process.

Ghost, on the other hand, holds the view that we elect a government at elections held every 4 years, that we choose a leader (I am not sure where he gets this idea from, leaders are chosen by parties and in some parties in most mysterious ways) and that the leader has the right to defend us publicly during that period of time.

I do not think democracy is as simple as allowing elections every 4 years. 4 yearly elections are simply the method by which a government is chosen in a democracy. It is not itself the end it is only the beginning of a real democratic society.

What makes up democracy is far more complex. It includes the need of a real fear by a government that it might be defeated. The chances of that in Gbraltar, where all elected members of the government benches are appointed Ministers, is virtually nil, unless they want to lose their inflated ministerial salaries. It also requires an effective Opposition which can work also within the possibility of a government being defeated.

There is a crying need for a more extensive and more critical press and representative organisations. I recall when there was much more criticism and activity by representative bodies in Gibraltar. Why this has diminished escapes me.

I also agree with Brown Cow. There should be less secrecy and more transparency. There should be more empowerment of the people in the manner that happens in local government elsewhere. Parliament should engage in "national" affairs. Other countries have this system and indeed other countries have two Houses of Parliament. A Parliament that has to deal with both "national" and "local" issues cannot deliver democratic government or indeed efficient government.

Is there any reason why Gibraltar could not have an elected Local Authority/Government elected every 2 years with powers delegated to it by Parliament? It would not be difficult, each polling station district could be a ward from which 2 representatives could be elected with very specific rules about transparency and the taking of decisions in public ... and importantly a prohibition on parties and permissive of independent candidates for election only.

Let the party begin ...

Tuesday, 26 October 2010

Is it Right for GBC to Broadcast Ministerial Statements?

Today I learn, from Panorama, that the Board of GBC has decided that "...having particular regard to Section 111(3)(i) of the Governor in Council's Directions to GBC dealing with political broadcasts and Section (3)(5) dealing with Fair Balance, the Board has decided, in its discretion, to grant the Opposition the broadcast requested ."

I cannot say that I am surprised. I wrote about this topic, before the decision was made, in the piece "Does the GSLP/Lib Alliance have the Will to Win?" (21 October). In that piece I questioned the fact that the GSLP/Lib alliance had not objected to the very concept of allowing Ministerial Statements. I said further that if these were permitted under the Directions then undoubtedly a right of reply by the Opposition must also exist or be the fair and democratic way for GBC to behave.

The basis and grounds upon which the broadcast of the Ministerial Statement was permitted still remain unknown. Is it permitted by the Directions? I should add quickly, before I am accused of crusading against the Chief Minister, that this is not a criticism of the Chief Minister or the GSD Government, such broadcasts have been permitted of other governments in the past. It would be of benefit if at least the basis of that decision, who took it and in what circumstances it was taken were to be made public.

What I am aware of is that the initial refusal to allow the Opposition a reply was premised on the grounds that they should do so in one of their allocated Party Political Broadcasts. If that were to have been how it should have been done, why was the same rule not applied to the Government? I can only speculate that the reason was that the contents of the Ministerial Statement were considered to be non-party partisan but rather a statement by the Government (as opposed to the governing party).

I do not necessarily accept that this logic and argument is the correct applicable criteria but applying the same logic and argument, Her Majesty's Opposition for Gibraltar should have been given an equal, fair and contemporaneous opportunity to reply. Instead we get the Board taking a decision. Did the Board authorise the broadcast of the Ministerial Statement or was it the executive of GBC?

The basis of their decision is said to be the Direction applying to "... political broadcast ..." one assumes this refers to party political broadcast, in which case why was the Opposition told to use a party political broadcast to reply? Logic dictates that it must have been because the Government equally used one of theirs. If it did not then these Directions are not applicable to either. What are the true facts of what happened? In addition, the Board say that it is the exercise of a "discretion" by them. Was it them who exercised a discretion to allow the Ministerial Statement to be broadcast? This is unknown also. It all seems a very odd carry on.

One of the unwelcome and irreparable effects of these events is delay. The Ministerial Statement was made some two weeks ago. The Panorama says that the date of the reply is yet to be announced. Any reply ceases to have some relevance because it is no longer contemporaneous and events have moved on in the time that has elapsed. The news media and especially GBC are essential elements of democracy in Gibraltar. These types of events undermine the effectiveness of the check and balance that should be provided by an independent news media in a democracy. There are few enough checks and balances in Gibraltar already so the diminution of one is a serious matter.

Lessons should be learnt from these events and steps taken to avoid a repetition in the same or similar circumstances. One major advance would be if the Governor in Councils' Directions were to be made public. At least in that way transparency would be achieved on how an independent corporation such as GBC takes decisions that have a political element to them. This will help safeguard GBC also from the criticism that it is not as independent from Government as it should be, a criticism that is often levied against GBC.

Sunday, 24 October 2010

Tripartite Process: Is it about Cooperation or Sovereignty?

Recent pronouncements by the Chief Minister on sovereignty, the Trilateral Process and Gibraltar's relationship with the MOD have left me confused and concerned.

In his Ministerial Statement of the 14 October he said that Spanish incursions into Gibraltar's British territorial waters impacted on " ... the viability of cooperation in matters relating to waters". He was very careful throughout this statement to limit any consequence of these incursions on the Trilateral Process to " ... cooperation in matters relating to waters ..." whilst giving the impression that the consequences were far more serious than that by the mere effect of the whole context of the statement and making his pronouncement in a rarely used "Ministerial Statement" on GBC.

No wonder that Spain was so sure that the Tripartite Process would continue without even a pause, which was what Moratino said the very next day. He must have been sure of his ground, especially as in his statement the Chief Minister states unequivocally that " The Trilateral Forum of Dialogue, which ... is in everyone's interest, is a political achievement of which I am especially proud " whilst covering the other angle by saying that he is " ... more firmly committed to the robust and resolute defence of our Sovereignty".

In this same Ministerial Statement he acknowledges the UK's Constitutional role and obligation to defend Gibraltar's British territorial waters and admits that Gibraltar does not have the resources to do so itself. Then he goes on to suggest, in my view incautiously, a military escalation by writing to the Secretary of State for Foreign Affairs seeking that he consider " ... the systemic deployment and intervention of the Royal Navy in support and protection of the RGP ..." Thankfully the F & CO put matters in perspective, rightly in my opinion, by resorting to diplomatic protests.

Promptly thereafter, the Chief Minister contradicts himself. In his speech at the Guildhall in London on the 19 October he announces that the MOD are guests in Gibraltar by using the word "host". He said "... for Gibraltar the ability to host Britain's military installations is our way of being able to invest something back into the Great British family ...". Why, where and when would guests (which I do not agree is what the MOD are in Gibraltar, as they are here as of right, otherwise British sovereignty becomes an irrelevance both on land and sea) be obliged to defend their hosts?

Now let us recap again. My understanding is that the GSD spin (and probably honest take and belief) on the Trilateral Process is that it is about cooperation and not sovereignty but that there is nothing to prevent Spain raising the issue of sovereignty. If they do so Spain would receive a gentle or not so gentle rebuff from Gibraltar. I was surprised, therefore, to read in the Chronic (22 October) that the Ministerial meeting within the Trilateral process was proceeding on the 3 November, that the waters' issue would be discussed at that level and that technical talks on every other aspect, except those touching directly or indirectly on territorial waters, would continue in the meantime.

Well, pray how can this be? The whole dispute over territorial waters ONLY concerns sovereignty. There are two diametrically opposed stances. The UK/Gibraltar position that the waters surrounding Gibraltar are British territorial waters traversed by Spain's position that no territorial waters have ever been ceded to Britain. Consequently, how is the issue of the waters surrounding Gibraltar going to be the subject matter of the next round of the Trilateral Process at Ministerial level, with the Chief Minister participating, without those discussions necessarily including a discussion on sovereignty of the waters and thus not being just about cooperation?

My view is that one mission and aim for the Trilateral Process has been partly accomplished by others, as predicted in this blog in past pieces. That mission has been to get the affected parties to talk about the real problem: sovereignty. Has Gibraltar been checkmated? Time alone will tell. The Chief Minister's belief (22 October Chronic) is "what we have achieved in the last four days in discussions with Spain and London is their agreement on the matrix of meetings that we wanted". I wonder why Spain and London have agreed to Gibraltar's matrix for these talks?

One consequent issue that Gibraltar's leaders will have to wrestle with in the future, if my analysis that the Trilateral Process will become a forum to discus sovereignty is correct, is how will Gibraltar be able to extricate itself from the Trilateral Process without causing a major diplomatic rupture? Maybe, in time, younger Gibraltarian will not want to, who knows.

Thursday, 21 October 2010

Does the GSLP/Lib Alliance have the Will to Win?

Complacency is one of the enemies of any political party. Go no further than the last UK election in which at one time it looked as if the Conservatives would win and Labour would lose, yet a Conservative/Liberal Coalition was the result. Recent opinions polls point to a GSD loss and a GSLP/Lib win. I have commented in my last blog that it is the electorate that has the final say, whilst the GSD may be losing, for them to lose another party has to win and want to win. If no other party goes for a win then the expected loser,the GSD, can and will win.

How? Very simple the disaffected GSD voter either does not change his allegiance and reluctantly votes GSD again or shifts it to the PDP. This type of result was a constant theme during the AACR era. Over and over again they formed government without receiving 50% or more of the vote. At the last election the GSD got just below 50% of the votes. It was enough to form Government because they got all their candidates elected.

I have been pulled up for saying that the GSLP/Lib Alliance needs to sort out their leadership, slate of candidates and act together in order to win the next election and should not just rely complacently on thier belief that the GSD will lose. I stand by that opinion. I am castigated on the basis that the leadership and slate does not need to be in place until the eve of the election:wrong. An Opposition Party must be a government in waiting. It has to show the electorate that it is capable of forming government, otherwise the electorate will not change its Government.

The leader of a party is a crucial decider for electors. Certainly the GSLP is to be commended for having leadership elections. It is for the GSLP at those elections to make its choice. The situation is that Joe Bossano has said he will step down this coming year, opening up the way for a new leader. Is this wise? The time lapse between the party leadership election and the possible date of a general election is very short. Will it give the electorate time to rally behind a new leader? Of course, GSLP Party rules dictate that a leadership election has to take place but Joe can and should contest that election. If he does he will likely win them. Is he the best person to lead the GSLP into the next election? It is not for me to say but, certainly, the recent opinion polls that favour a GSLP/Libs win have all been held whilst he has been leader. Certainty in its leadership will help the GSLP/Libs win the next election.

The early announcemet of the slate is equally important. It is one method by which an opposition party can show that it is a government in waiting. Each and every potential candidate must show the electorate ability and capability to be a Minister. Gibraltar wants a Government not government by one person. The GSLP/Libs have a golden opportunity to take advantage of this desire and show that they are a team that can govern in cabinet with collective responsibility, not because its leader dictates, but becuase all candidates have participated in the process to come to a policy decision.

Why do I say that the GSLP/Libs have to get their act together? Well, quite simply because it may have the best policies and the best manifesto. It may issue wonderful and lengthy press releases. It may ask hundreds of questions at meetings of Parliament. Electoral politics is not just about that. It is about getting the message across to the electorate. How many people really read such lengthy and complicated press releases? How many people actually get to know about the questions and answers in Parliament? How many people do more than glance at a manifesto? I am sure that I do not have to answer any of these questions. Getting the message across is about short and sharp soundbytes on topics and issues that affect and interest the electorate.

I can hear all the voices at once saying, the incumbent Government has all the advantanges, just look at GBC, they publicise the Government and even allow them Ministerial broadcasts whilst denying the Opposition a right of reply. What do the Opposition do? Bleat about GBC not giving them the right and ask GBC for it: wrong. The Opposition were handed a public relations win/win. It has not used it to best effect.

The issue is not that the opposition has not been given a right of reply, that is only half the issue. The other half, that they should but have not exploited, is the very fact that the GSD were given air time to make a Ministerial Statement at all. On what legal or democratic basis was that permitted by GBC? If it is permissable under the law or rules governing GBC, then it should, surely, only be on the basis that an opposition party has a right of reply. The relevant provision should be changed, if it exists at all. A perfect soundbyte opportunity lost by the GSLP/Libs.

Instead the Opposition decides to shoot itself in the foot. It votes against the new tax legislation proposed by Government and recognized to be the way forward economically for Gibraltar and its finance centre. One justification for this "NO" vote is that the tax law enforcement provisions are too onerous. Well tell that to the GSLP/Lib alliance core voters who are in the main PAYE payers. Do they care? I doubt it, what they want is all self employed and businesses to pay their dues. The GSD Government have got that one right and guess what they have gained from the event, courtesy of the Opposition.

I could go on but I believe I have made my point. What I will finish off on is some self indulgent statistics. This blog, on the basis of word of mouth only and without access to any Gibraltar news media, gets on average 10,000-12,000 hits a month. The Facebook page for this blog has 1600 individual adherents (the GSLP's page just over 800 for the purposes of comparison). Surely there is a lessen to be learnt by all political parties from these statistics? The lesson, simple, the electorate is thirsty for REAL politics. Go on, be brave give it to them ... otherwise democracy in Gibraltar is but a figment of the mind of politicians. A lack of proper party politics and proper choice in Gibraltar defeats the whole democratic process. Go on GSLP/Libs have some courage and give Gibraltar's democracy what it deserves: a credible government in waiting.

Saturday, 16 October 2010

Surprise, Surprise ... UK Restrained over Bay Incursions.

On the 7th October I wrote, "Gibraltar does not have enough power ... in the military sense to defend against any aggressive act from Spain ... My thoughts ... turn to the incursions by Spain into Gibraltar's territorial waters ... It seems to me that there is little that Gibraltar can do about these ... without full assistance in every regard from the UK." (see blog "The Bay, the Secretary of State at the FCO, the Governor and the Government"). Events in the last couple of days give full credence to this statement. It also highlight the limitations on what will be done and the extent of the role that will be played by the Royal Navy.

Credence because in his Ministerial Statement of the 14th October the announcement was made that a letter had gone from the Gibraltar Government to the Secretary of State, William Hague, asking for the UK's support and the deployment and intervention of the Royal Navy. Limitations because the reply from a Foreign Office spokesman has been "The Royal Navy is already present and their role is well defined already". How that role is defined is unknown to me. It seems, rightly and understandably, that aggressively defensive action is not on the cards.

"Rightly and understandably" because Gibraltar is no longer facing a Spain controlled by a fascist dictator. The UK and Gibraltar are dealing with a European democracy, a fellow member of the European Union and a NATO ally. There is absolutely no question that the UK can or should take any steps that could be interpreted as the UK adopting an aggressive stance against Spain. Deploying the Royal Navy, as requested by our Government, probably an irresponsibly move, is such an act. Issues between fellow members of the European Union and Nato are resolved through diplomatic channels and by mature discussion. The UK's stance is measured and correct and rebuffs the Gibraltar Government's request, which, if it had been heeded could have had unnecessary and detrimental repercussions on Gibraltar.

What this incident and its aftermath emphasizes is that the central issue for determination is the issue of sovereignty. The suspension of technical talks due within the trilateral process is of no great significance, although it is symbolic. What is of significance is that the thrust of the Trilateral process is not aimed at resolving the central issue of sovereignty. Talking about peripherals whilst that issue is ignored has little point. Talking about sovereignty is not within the realms of possibility simply because Gibraltar does not wants any change on that front.

What should be done? Well, there are some immutable facts. Spain, in direct conflict with the wishes of Gibraltar, maintains its claim to sovereignty. Neither Spain nor Gibraltar will shift on their respective positions in the foreseeable future. The position of both is so entrenched that there is absolutely no room for compromise. In this situation there is only one option for Gibraltar. Gibraltar must stoically and in a dignified manner defend its stated desire to remain British. The responsibility of Gibraltar's politicians is to continually monitor, analyze and assess this policy and ensure that it remains a policy that is in the best interests of Gibraltar. If this were to change or if it has changed it would be or is their responsibility to honestly tell the electorate and support their position with strong and persuasive argument. This is what leadership is about.

To defend itself stoically and in a dignified manner, Gibraltar must continue to act authoritatively, in the same manner as it has always acted, to exert its control over its British territorial waters. The relevant government agencies must continue to exert their authority over these waters. In the event that Spain engages in provocative acts, these must be dealt with in a controlled and sensible manner. Each incident will be different and each incident will need to be managed with care, which will place a huge responsibility on the individual on the ground. These individuals must be briefed fully on how to react. They must avoid acts that will lead to an escalation of any incident, no good will come of any heightening of tensions. We must be "British" about this.

Gibraltar will gain the high moral ground if it maintains its position in a peaceful and dignified manner. Maintaining the high moral ground will improve Gibraltar's diplomatic case. Maintaining the high moral ground will not undermine the fact and reality that the waters surrounding Gibraltar are British territorial waters. Spain's acts do not enhance their case one iota. Gibraltar's reaction to those acts may well do so in so much as attention is drawn to a non-issue (Spain's assertion). Non-issues have a habit of gaining a momentum of their own if they are exacerbated. Third party countries can become involved. We should remember that Gibraltar is important and big for us but to most third party countries we are but a nuisance, however unfair that opinion might be.

It also borders on the incautious to submit our case to an international court of law as has been suggested by the Government. Diplomatic problems between States should not be handed over to judges for resolution. However strong Gibraltar's case might be (and there is no doubt that Gibraltar's case is as strong as the Chief Minister says that it is), there are enough conflicting and competing principles in international law to enable judges to justify any conclusion they wish to. An international court has to take many factors into account. It may well come to a wrong conclusion. If it were to do so, Gibraltar would find that it is not in a good place.

International disputes are resolved by diplomacy and negotiation, if they are capable of resolution at all. If there is no solution, then each one to his own. After all, life in Gibraltar is not so bad, nor are local cross-border relations bad. Thankfully, no one's life is at risk. Let diplomats resolve those disputes that, if resolved, save lives. Gibraltar will remain a good place to live in whether or not Spain continues to pursue its claim and provoke incidents in the Bay. We should take comfort in knowing how frustrated Spain must feel at making absolutely no progress over its claim. We should all get on with our lives like we do now and did during the closed border era. If Spain places inconveniences in our way, they can never be as bad as those that we faced when the frontier blockade was in full swing.

Did the issue really require a Ministerial Statement? I am not sure. If it did not, what was the motivation for it? Certainly electors in Gibraltar seem to have taken it in their stride. I certainly have.

Sunday, 10 October 2010

Drink Laws Reform Signals Political Change?

The recent announcement from Justice Minister, Daniel Feetham, accompanied by Family Minister, Jaime Netto, is a very welcome development. Welcome, not just because it tackles a serious and growing social problem but importantly because it is a ministerial initiative, which if allowed to flourish will improve the democratic process in Gibraltar.

Drinking amongst youngsters has been a problem that has been getting worse year on year. It is a grave social problem with grave consequences that greatly contributes to the commission of crimes of violence and disorder. It uses up police resources unnecessarily at great expense and distracts those police resources from being deployed to more important and essential law enforcement duties.

The increase of the legal age of drinking from 16 to 18 is consonant with the laws of many other countries. The permissive aspect that allows supervised drinking of certain alcoholic beverages at the ages of 16 and 18 is enlightened. It empowers parents to decide what is best for their own children but, probably more importantly, it provides a legal mechanism by which 16 and 17 year olds can be shown how to drink responsibly. Importantly this system is based on empowering parents, which avoids the criticism that a "nanny State" is being implemented. Too much interference by the State into parental and, indeed, citizens' rights and obligations is to be avoided at all cost. The State's responsibility is to the community as a whole not to substitute individual parental controls or the duties and obligations of citizens.

Even now, whilst the legal age for drinking is 16, there has been widespread abuse, purposeful or possibly inadvertent, which has resulted in alcoholic drinks being sold to youngsters below the age of 16. 16 is in itself too young an age for the law to permit the drinking of alcohol. The sale of alcohol to underaged persons has gone relatively unchecked for some time. The fault has not been down to lack of effort on the part of the police. It has been more to do with the low penalties that could be imposed. The new law cures this deficiency also. It introduces penalties that are a deterrent in themselves. More importantly, the new penalties will help to further incentivise the police to enforce the law strictly. They will see the deterrent effect of the sentences work to prevent future breaches of the law.

But does this recent announcement signal a deeper political and hierarchical shift within the GSD? We see Daniel Feetham taking another lead on an important and fundamental change to the law accompanied by another minister Jaime Netto. Daniel Feetham seems to be taking more and more initiatives in matters that are essential to good governance at a local level. His initiatives in the field of law reform is the central plank that any Gibraltar Government should be concentrating on. It is the very reason why governments are elected. The international and other more glamourous aspects of government are undoubtedly of enormous importance but those should not be dealt with to the exclusion or detriment of the legislative process that is not led by compulsion from the EU.

Leadership initiative within the GSD shown by the likes of Peter Montegriffo and Keith Azopardi has been stifled in the past. Both left frontline politics within the GSD to the detriment of Gibraltar. This is not an effect that is unique to the GSD. Historically in Gibraltar parties of every hue have lost talent unnecessarily. Let us hope that this does not happen again. Let us hope that Daniel Feetham's enterprise, ambition and dynamism is encouraged and allowed to flourish. Democracy in Gibraltar will be enhanced if it were to be permitted.

Thursday, 7 October 2010

The Bay, the Secretary of State at the FCO, the Governor and the Government

The recent incident in the Bay started me thinking about what is the constitutional position of each arm of government, namely the Secretary of State, the Governor and the Government, under the 2006 Constitution. The answer is one of strict legal analysis but it also requires and analysis of of what the practical position is, in reality.

Under the 2006 Constitution the Governor is "... Her Majesty's representative in Gibraltar" (Section 19). The Governor is charged with external affairs, defence, internal security which subject to the oversight of the Police Authority, includes the police (Section 47) and certain public appointments.

Importantly section 47 includes in brackets the words "subject to this Constitution and any other law". I is important to analyse what restrictions these words place on the Governor's powers. The restriction is twofold the first is those imposed by the 2006 Constitution. The second those imposed by any law, which on the basis that the Constitution is an Order in Council surely means laws of equal standing, as Gibraltar's Parliament cannot arrogate unto itself powers to change the fundamental law contained in the 2006 Constitution.

What are the restrictions on the Governor's powers under the 2006 Constitution? Well, it seems to me, that they stem from the power and authority given by the 2006 Constitution to both Gibraltar's legislature and the executive.

Executive authority is vested in Her Majesty, who is represented by the Governor, but that executive power is exercised by the Government of Gibraltar (Section 44). Does this means that the Governor is restricted to act in accordance with the executive authority of the Government of Gibraltar even on matters that are supposed to be in his discretion? It seems difficult to interpret section 47 (Governor,s Special Responsibilities, see below) in manner that would result in a negative answer to this question. Enormous executive powers can be exercised by the Government of Gibraltar, in my opinion, even on those matters that one understood were to be the special responsibility of the Governor under the 2006 Constitution because of and by the use of the legislative authority vested in Gibraltar's Parliament. The principle of the "Rule of Law" would require that the Government of Gibraltar only act on those matters under powers given to it by an Act of Parliament.

The legislature of Gibraltar consists of Her Majesty and Parliament (Section 25). The legislature is empowered to " ... make laws for the peace, good order and good government of Gibraltar", with the restriction being that it must do so subject to the 2006 Constitution (Section 32). One restriction is certainly the requirement to comply with the human rights provisions included in Part 1 of the 2006 Constitution.

Another restriction is the requirement that the Governor needs to assent to any Act of Parliament or that he refers the same to Her Majesty but this power is limited under the 2006 Constitution. The limitations are that he can only reserve to Her Majesty those bills that are repugnant to the 2006 Constitution, which are those that either breach human rights or are not for the "... peace, good order and good government of Gibraltar". The governor may only withhold his assent if he considers an Act to be repugnant to good government or incompatible with international obligations. In short there is not much scope to withhold assent to any law passed by Parliament, inclusive seemingly, of those matters that are defined as reserved to the Governor in section 47 (see above) because of the very carve out that makes those powers subject to the 2006 Constitution. This must mean that the exercise by the Governor of these powers are subject to the legislative powers of Gibraltar's Parliament.

So does the Governor have any safeguards that he can deploy to counteract the power of Gibraltar's Parliament? Well essentially, it seems to me, that the power the Governor has is the power to introduce direct rule. The Governor can do this in one of two ways. Either by using his legislative powers (section 34), which allows him, with the consent of the Secretary of State, to legislate on matters that under section 47 (see above) are within his remit but first having given the Chief Minister the opportunity to legislate on the issue in Gibraltar's Parliament.

The alternative is the nuclear option. The exercise of the power by Her Majesty contained in paragraph 8 of Annex 2 to the 2006 Constitution. In full this says:

"There is retained by Her Majesty full power to make laws from time to time for the peace, order and good government of Gibraltar (including, without prejudice to the generality of the foregoing, laws amending or revoking this Constitution "

So everything that is given on the one hand can be taken away by the other at a stroke of Her Majesty's pen, not forgetting that she is represented in Gibraltar by the Governor. I accept that Her Majesty must mean Her Majesty acting on the advice of the Privy Council (through the Secretary of State who is a Privy Councillor) but still, this power can be deployed or its use threatened.

The reality, I would have thought, is that in practice the Governor and the Government (read Chief Minister) must find a working relationship in the sense that the latter needs to tread a path that will not cause the Governor (meaning the UK through Her Majesty) to exercise or even consider exercising his constitutional powers. It is also clear that the extreme remedies provided to the Governor/Her Majesty in the 2006 Constitution militate toward empowering the Government in every area of government. This makes the lack of checks and balances in the system of government and the undemocratic electoral system even more worrying and the need to progress that debate even more important.

There is also another reality. Gibraltar does not have enough power (in my mind essentially none) in the military sense to defend against any aggressive act from Spain. The chances of an outright invasion are of course negligible, as the international reaction to an event like that would be overwhelmingly detrimental to Spain. My thoughts in this regard, however, turn to the incursions by Spain into Gibraltar's territorial waters and the recent pronouncements by Spain's Foreign Minister that Gibraltar has none. It seems to me that there is little that Gibraltar can do about these, beyond complaining about and condemning such acts, without full assistance in every regard from the UK.

The moral of the story is that Gibraltar's friendship and relationship with the UK must transcend the letter of the law as contained in the 2006 Constitution. There are pragmatic considerations that need to be taken into account and Gibraltar's relationship with the UK, at a practical and real level, should be carefully nurtured. Doesn't the UK do it with the USA and the EU and every sovereign nation with other sovereign nations? The quest and campaign for self determination needs to bring this consideration into account, especially if Spain is not onside. It is clear that from its actions Spain continues to have only one objective in its sights: the recovery of the sovereignty of Gibraltar.

Saturday, 2 October 2010

The "Leader" Says All is Good, so do not Worry.

As someone who has voted GSD (and is happy to say so) in every election at which the GSD with Peter Caruana as its head has been elected into government, I fully recognise that the GSD and Peter Caruana have done much for the betterment of Gibraltar. It is right that he should boast about this in his speech to the Casino Calpe, which unfortunately I missed. Unfortunately because I would have liked to have been there, both as a courtesy, because I am a past President and Life President, but more importantly because I would have heard his talk first hand. As it is I was unable to be there because I am on my annual holidays. I write this piece (some will say because I need my head examined) looking over the Grand Canal in Venice. Consequently, I rely (with thanks and attribution) on the Chronic report.

As a democrat, I am concerned that Peter Caruana should so openly criticise the GSLP opposition party on the basis that it has a "leadership" crisis. I am concerned that he should criticise its leader, Joe Bossano, on the grounds that having lost 4 elections, he is not worthy to be its leader. I do not agree. It may be a ground upon which the electorate might decide not to vote for the GSLP but it is not an issue upon which an election should be fought by the GSD. It is not for Peter Caruana to decide who should or should not be the leader of the party that opposes him. That is a decision for the members of that party alone. If it means that an election is lost on that ground, so be it but, at the very least the democratic process will have taken its course.

I am sure that it has not gone unnoticed that the other side of the coin of that selfsame argument is that, according to Peter Caruana, the electorate has no choice but to vote for the GSD and so install Peter Caruana as Chief Minister again. Implicit in his argument is the concept that he alone is worthy of that position of responsibility. Why? Because Joe Bossano has lost four elections so is not worthy of your vote and Fabian Picardo might do "crazy" things. This, together with the mantra that ... "Gibraltar is too astute to change good for bad ..." is a perfect argument to do away with democracy altogether. Peter, it is not you that decides what is good or bad, it is the electorate.

Perhaps he feels that Gibraltar should implement a dynastic system like that of North Korea? Should one not ask at this stage, who is in line to take over from Peter Caruana as leader of the GSD? There are many rumours about that ... and guess what ... is there anyone on the cards? I do not know but it seems to me that if the GSLP have a leadership problem, don't the GSD have the same problem? Maybe not but will Peter Caruana enlighten the electorate on that issue? Perhaps Peter Montegriffo is better equipped to answer that question.

let us make a quick analysis of the way Gibraltar has developed economically. If my memory serves me right the GSLP government were faced with a period of major transition in Gibraltar's economy from an economy virtually entirely dependent on UK Defence expenditure (and an ailing privatised dockyard) to one based on the private sector. Who laid the foundations for the changeover? If my memory serves me right, it was Mr Bossano's GSLP government. In addition to developing the pillars of the economy, finance centre, tourism, and the the port, it attracted the biggest ever (still today) foreign investment to Gibraltar in the guise of the Danish investment in Europort, which has been put to use by the GSD government, in part, as a hospital.

What has the GSD government actually innovated? Very little other than to build on the economic foundations laid down by the GSLP administration. Well, there is the Cordoba Agreement giving rise to the tripartite forum. Is this a success? Each reader can judge this for himself, but flights to Madrid, a failure, queues, well, are they much better? And now, clashes in the bay, which in another era would have possibly led to more serious consequences and which has led to even Peter Caruana questioning the effectiveness of the Trilateral forum. This statement could be considered the beginnings of an admission by him of the failure of this policy of engaging with Spain without tackling the fundamental issue of sovereignty. Oh yes, sorry, there is the joint use air terminal, but where is Spain's bit? And yes, the Instituto Cervantes, well we all know where it will be located but when will it be up and running? And without a shadow of doubt the GSD has, as promised, eradicated the tobacco trade. Has it? Still the GSD government can deliver the capital expenditure projects that it is delivering. What is paying for these in part? Could it be tax revenues from tobacco sale? All that The GSD have delivered is a more sanitised version of this trade. Let us not forget what it was the tobacco trade that resulted in the defeat of the GSLP government in 1996.

And then the excuse to end all excuses. There are no additional flights to Gibraltar because Peter Caruana says that he does not allow Joe Holliday to increase air services until the new air terminal is ready. Sorry! My understanding is that most airports and air terminals are not expanded until existing facilities are stretched. Perhaps Mr Caruana either knows different or has expert consultants who have advised him different. To boot do Ministers have any power when Mr Caruana can "... not allow ..." one of them to effectively undertake and succeed in their own ministry, or is it just an excuse for the failure?

In the end it is all about democracy, something that the GSD promised in 1996, with less centralised government nt controlled by NO 6 and greater transparency, you can judge whether the GSD has delivered on this promise. I am a fervent believer and adherent to democracy and the right to freedom of speech. If in the UK two brothers can fight over the leadership of the Labour party and still love each other, there is no reason why speaking ones mind should poison relationships. In this regard each of Joe Bossano, Daniel Feetham and Fabian Picardo have been magnanimous, they have each been critised in Llanito World and each of them have seen fit to discuss these criticisms with me, that is real democracy and free speech at work.

Tuesday, 28 September 2010

The Electoral System and the Cult of Personality

Gibraltar has had serious self-government since the 1968 Constitution. It has also had exactly the same electoral system since that date, despite endless promises from politicians over the years that they would reform it. Beyond vague references to the possible introduction of a system of proportional representation, which is not descriptive of a single system but rather a generic name for a variety of electoral systems, and vague promises to look into change, no reform has either taken place or is on the cards.

An opportunity to make a change at the time that the 2006 Constitution was under consideration was lost. There does not seem to have been any appetite either on the part of our politicians to make a change nor was it an issue, so far as is publicly known, that the UK government put on the agenda. The effect is that, once again, it is left for Gibraltar's elected politician to reform the system. They will not. It is not in their interests to do so.

It is not in their interest to do so because the existing system works in their favour and for their selfish ends and not for the achievement of the better government of Gibraltar. The 10 (previously 8) votes for one Chief Minister system means that we end up with a cult of personality, Sir Joshua Hassan, Sir Robert Peliza, Joseph Bossano and lately Peter Caruana. Most other candidates elected into government over the years have hung onto the coat tales of the personality in vogue from time to time and, guess what, they get status (the "Hon", wow!), a whopping salary and such power as the incumbent Chief Minister allows them to have.

It is not that each of these Chief Ministers have not done good things for Gibraltar. Each, in his day, has done much for Gibraltar, each has also made mistakes. The point is that one person alone cannot and does not have the ability to govern generally and have answers on every subject. Gibraltar prides itself on having excellent and well qualified individuals. The electoral system should encourage and not discourage, as the present system does, these individuals from standing for election.

Party politics means that potential candidates have to decide who they will support prior to standing for election. A decision that is not so much based on political ideology but rather on personality and on fine distinctions of policy based on the need to oppose or be different rather than policies that are designed exclusively for the betterment of Gibraltar and its people.

The electoral system that is in place at present encourages party politics. Undoubtedly party politics cannot be prohibited nor will it likely disappear. However, there are known and well researched electoral systems that encourage individuality and promote coalition politics. In Gibraltar there should be no fear of coalition government. Coalition government in a territory the size of Gibraltar with the talent that it has will promote better governance for the benefit of a wider electorate. It will provide more individual accountability. It will provide a wider choice of candidates. It will mean that elected members will choose the Chief Minister, making him more accountable. All in all it will deliver more democracy.

The belief that governance and the democratic process will be improved by imposing an eight year limit on the time that any one person can serve as Chief Minister is misconceived. Such a system institutionalises the cult of personality and is presidential in style. This is not our system of Government. It is the USA system. The USA system has checks and balances that we do not have in the form of a separate legislature and a Supreme Court with more extensive constitutional powers.

One additional change that would be necessary to improve the separation between the executive and the legislature, however, is to increase the number of MP's and place a limit on the number of ministers. This will ensure that MP's will counterbalance the power of the executive and help to prevent executive abuse.

What is strange is that the 2006 Constitution has come about without a review of the electoral system to enhance good governance. This begs the question that possibly the cult of personality also suits others better. It delivers one very powerful individual, the Chief Minister, with whom all international relations and defence requirements can be negotiated. Perhaps, the convenience of that system is what militated at the time of the 2006 Constitution against the type of change that is advocates in this blog.

Future promise by politicians that they will reform the electoral and ministerial system will not be credible unless the promise includes a detailed exposition of the proposed reform and commits to the introduction of the reforms within the first 2 years of election into government. Failure to reform the system in that time will allow the electorate to see the lack of sincerity and vote that government out of power at the next election.

I live in hope of electoral reform but not in expectation of it.