Monday, 19 April 2010

The Chief Minister, The Attorney General and the Gay Consent Case

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!


  1. It is quite right that the age of consent issue is not primarily a domestic one.

    If the age of consent issue were to reach the European Court of Human Rights in Strasbourg, it would fall to the UK to defend Gibraltar's position. This is because the UK is responsible for ensuring that convention rights are respected in Gibraltar.

    That can present the UK with a dilemma. If Gibraltar's elected government insists on measures that are contrary to the ECHR, does the UK respect the Rock's democracy, or does it step in to ensure compliance with its (and Gibraltar's) international obligations?

    Over the last decade, the UK has shown considerable respect for Gib's democracy, at the risk of breaching its own international obligations. It did not intervene in the women jurors case, nor in the Rodriguez case about the lesbian couple who wanted a joint tenancy of a government flat. Neither case reached Strasbourg due to the decisions of the Privy Council, but few would have bet on Gib's all-male juries and discriminatory housing policies being upheld. In other words, the UK govt respected the wishes of Gibraltar's political leader, even at risk of breaching its own obligations.

    On the age of consent, the UK is seeking to intervene, and take an active part in the case. As it is the UK that is responsible for ensuring convention compliance on the Rock, as it is they, not Peter Caruana or Ricky Rhoda, who will take the flak should this issue reach Strasbourg, it is surely just that they take part?

    It is to be expected that some peple will feel discomfort at progress towards equality for gay people. They have nothing to fear. It is a simple fact that some people are gay. The rest of us should simply get over it.

  2. Simon says:

    Section 115.1 of the Criminal Offences makes it an offence for a man to commit buggery with a woman regardless of age. Perhaps that too needs to be addressed. Porque one ever really knows what goes on behind closed doors.

  3. Thank you for agreeing that this issue is not primarily a domestic one.

    Thank you also for so clearly expressing the UK's respect for Gibraltar's democracy. Also for explaining the difficulty faced by the UK in these types of situation, especially in relation to the jury case and the joint tenancy case. I must assume that this view is based on an analysis of known facts rather than knowledge. This knowledge is only privy to the FCO, unless of course you are someone in the know.

    I assume that one need for the FCO to be a party in the Gay Age of Consent Case arises from it being precluded from recourse to an appeal all the way to the Privy Council were it not to be added as a party to the case. The answer in law to the question posed is surely so obvious that it is unlikely that the Privy Council (should the issue go that far) would come to a conclusion that would place the UK in a difficult position in respect of its international obligations. The Privy Council decision on the two other cases clearly avoided this occurrence. The law is the law and the Privy Council got it right. No doubt, it will get the Gay Age Consent case right.

    This blogger agrees with Robert Vasquez's recent letters to the Chronic. The people of Gibraltar were sold a pup by Peter Caruana. He told them that the referendum on the 2006 Constitution was an act of self determination; clearly it was not. In reality it was an endorsement of Gibraltar's colonial status. Thank providence, as otherwise Spanish sovereignty beckoned without it having been negotiated, not that there is any desire for any such negotiation.

    This blogger has no problem with a colonial status for Gibraltar on the basis of mutual respect for democracy. The Treaty of Utrecht allows for no other status without Spain's agreement. The tolerance shown by the UK of Gibraltar's democracy does not override the UK's legal right to directly pass and apply laws and/or impose direct rule. It is this power that in truth renders Gibraltar a colony, by whatever name it might be described (presently United Kingdom Overseas Territory).

  4. There is one alternative to colonial status without Spain's agreement - integration with the United Kingdom. Although the UK govt may oppose this, I do not believe that a proper lobbying effort could not achieve integration. I don't mean flying ministers to meet UK ministers, I mean paying professionals to put the case for integration.

    Integration need not lead to any loss of self-government for Gibraltar. The UK is becoming more decentralised, so incorporating Gibraltar's constitutional arrangements would not present any difficulty. Gibraltar would keep its parliament, its courts, its government. Gibraltar's sense of identity would not be endangered - the Welsh and the Scottish have kept distinct national identities from the English. Gibraltar could even gain - a Gibraltar MP in the House of Commons could not hurt the Rock.

  5. Integration with the UK is all very well EXCEPT that the UK has ruled it out outright over and over again.

  6. With respect to the last Anonymous poster above:

    (1) Integration would necessarily lead to the loss of a significant amount of self-government for Gibraltar, not least because Gibraltarian interests would be subsumed into the greater British whole - i.e. we cannot be integrated for the "good" bits and then claim autonomy when we don't like what's being cooked up for us in Westminster. We need to move away from the notion that British and Gibraltarian interests will forever converge. History would suggest the contrary is truer. For instance, how would an integrated Gibraltar be able to battle against a renewed joint sovereignty effort between London and Madrid, bearing in the mind that integration would still NOT mean the end of the Spanish sovereignty claim.

    (2) What possible value does having a Gibraltar MP in the Commons have for us, now or in future? And how does the Anonymous poster envision the division of powers between the "national" government and parliament in Westminster on the one hand, and the "regional" government and parliament in Gibraltar on the other, under his preferred integration model?