The Chronic of the 17th April 2010 reports that the Attorney General argued that the issues before the court on the equalisation of the age of consent for sex was a domestic matter despite which, he argued that, Britain has a legitimate interest well served by it being an "interested party" and extraordinarily that the Chief Minister and he were "rather zealous" to protect who could join as a full party in the case.
Taking the last point first, it seems an extraordinary argument and proposition (without analysis of the legalities) that claimants in a case (that has no other parties) should dictate who can join as a party. This is especially so if the effect of that restriction is to prevent anyone from appealing any decision save for the claimants themselves. Despite making these arguments the Attorney General concedes that Britain has a legitimate interest in the matter. Surely this is an attempt at censorship of an extreme type and would be an affront to freedom of expression ?
On whether the issue is a domestic matter, this blogger begs to differ. On a superficial analysis this would seem to be the case. The issue is whether or not local laws are or are not contrary to the 2006 Constitution of Gibraltar. Without further scrutiny and analysis these facts would seem to soundly support the argument that it is a domestic matter, However, it does not take much thought to ask two questions that radically changes this conclusion.
The first is, what is the origin of and reason for the fundamental rights enshrined in Chapter 1 of the 2006 Constitution? The answer is the European Convention of Human Rights. This being the case, the issue ceases to be a domestic one and becomes an external affair. Why? Because the repercussions for any breach will fall on the UK who are responsible under the 2006 Constitution for Gibraltar's external affairs. External affairs must surely include compliance by Gibraltar with international obligations? The fact that these international obligations are subsumed within the 2006 Constitution do not undermine the international consequences of non-compliance or its international aspect. This analysis is borne out by the documents filed by the Chief Minister and the Attorney General themselves in this case . The Chief Minister describes his interest as " ... ensuring ... compliance with international obligations ...".
The second is that the 2006 Constitution is itself not a piece of legislation passed by the Parliament of Gibraltar. It is an Order in Council of the Privy Council of Great Britain and as such a piece of British legislation despite that, quite possibly, the Privy Council has acted in right of the Crown of Gibraltar.
The documents filed in court state that the interest of the Attorney General is that of " ... ensuring that any prosecution against a homosexual man ... is constitutional." The role of the Attorney General, as the sole decision maker on whether to prosecute someone or not,is protected in the 2006 Constitution from any interference by any other person. The independence of the decision to prosecute is sacrosanct.
This blogger understands that, despite the different interests and constitutional roles of the Chief Minister and the Attorney General, the Attorney General appeared for himself, which makes him a litigant in person rather than appearing as Queens Counsel, and also appeared in a representative capacity for the Chief Minister. What impression does this give? Is it another (at the very least) blurring of constitutional roles and separation of powers and functions? It is for the Attorney General to prosecute in accordance with any law passed by the legislature. It is not for him to question its constitutionality.
It is for lawyers defending (not the Attorney General in a vacuum and in concert with the Chief Minister) to raise constitutional issues. The defendant in any such case would be a person affected. Under section 16 of the 2006 Constitution this would entitle such a defendant to seek redress.
Undoubtedly the Gay Consent Age case is throwing up and will continue to throw up more and more interesting issues ... let us see what else turns up and what the repercussions might be!