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.


  1. Off topic ...

    Many would like to see this in Gibraltar instead the private sector continues paying the goldern retirement of the unionised civil servants. Will any political figure be brave (or stupid) enough to stamp it out?

  2. Excellent piece. Time well spent. I’m delighted with your last paragraph. The quest and campaign for determination should clearly state the people’s unshakeable desire to stay British and keep Gibraltar British. All semblance of a desire for independence, with its inherent dangers, should be avoided. The ordinary people of Gibraltar have a Gibraltarian identity and British Nationality. This is what they defend and wish to retain. National Day is remembrance day of the 1967 Referendum, which was all about being British and not about Gibraltarian independence.
    The distribution of powers in the 2006 Constitution is a “la,la”, a lawyer’s labyrinth. You and I did our best to stop it in the NO Campaign and it should not have been approved by our Queen, since only a third of the electorate voted for it. A referendum in Malta was not approved with a very much larger favourable vote.

  3. My dear Robert
    I totally agree with Mr Peire’s description of the constitution, 'a lawyer's labyrinth'.
    If you, a learned friend, question the interpretation of what is said in our constitution, imagine the not so learned.
    How are we, 'joe public' supposed to defend our society, our institutions, our legislature being 'influenced' by the executive? etc etc.
    Where are the checks and balances? The ombudsman office? That can only recommend on their findings. Citizen Advice? I understand they only point you in the 'right' direction. The police complaints board? It has been described as ‘another charade’.
    The fact, as I see it, is that a few privileged citizens with influence '££££' and status, 'they move in high places' tend to control the status quo and have done so for hundreds of years...
    ... it seems that not much has changed.
    Some would say: Hay que controlar a las masas.

  4. Bay of Gibraltar:

    That makes 3 of us in agreement so far ...

  5. PART I

    You’ll find that the reserve powers of H. M. The Queen simply means the British Government -No. 10 Downing Street and not even the UK Parliament. That's because the constitution is the product of the exercise of the royal prerogative by the government (Privy Council) in the name of the Queen (as one of its few remaining aspects) in the governance of colonies.

    All it means, and it's much wider than at first might have been thought, is that the balance of power as between the British Government vis-a-vis the Gibraltar Government (No. 6 Convent Place) and the Gibraltar Parliament is obviously and heavily tilted in favour of the British Government (in practice and theoretically). To complicate it even further, the final balance of power is held by the British Parliament (in theory) over both governments and the Gibraltar Parliament.

    This is the democratic deficit that the IWBP has been fighting against for many years, for a Gibraltarian MP/representation in the UK Parliament.

    So that people understand, we could compare it to a company. You have your Board of Directors who takes all decisions except on certain matters. Those same directors are the 49% shareholders. The other 51% shareholder tells the Board of Directors how it should act in those matters that are outside its competence and if it fails in those matters that are within its competence, they face the sanction of the 51% majority in a General Meeting or EGM. You then have a shareholder with the "golden share" that could overrule everyone else on anything. That is the set-up.

    That is the other major democratic deficit in constitutional terms and one of conflict in many instances because the British Government and Parliament hold those powers in the Monarch's name for its own people in Wales, N.I., Scotland and England. The Gibraltarians do not have the same historical roots, links and rights in the evolution of the UK as a matter of birth right.

    That explains the IWBP's fight for integration with Britain.

  6. PART II

    The British Government and British Parliament can even change the rights bequeathed to the citizenship of Gibraltar in sections 1 to 15 of the constitution - section 18 (10) and paragraph 8 Annex 2.

    The British Government/Parliament can, in theory, change the whole political, legal and administrative landscape of Gibraltar by one simple order in council. Why and for what purpose have they kept this power???

    Ultimately, both sides hold their respective powers on trust for the Gibraltarians for their "peace, order and good government" subject to the caveat that the UK government (as a matter of political policies) does so for its own people above all else.

    The fact that we have British Citizenship alleviates our difficulties somewhat - the people of Gibraltar cannot be passed over to another sovereign nation without their consent because they are now British Citizens.

    That is why the public interest means different things to different people.

    Gibraltar's geographical location, size and history are at the heart of all these constitutional problems and conflicts for its people together with Spain's constant obsession with her own sometimes fragile territorial integrity. The fact remains that the garrison will always be the garrison in times of need.

    There is one unanswered and troublesome constitutional question: why weren't the 1969 and 2006 Constitutions approved by the British Parliament?

    It can't be because (at least not the 2006 constitution) it would have breached international law and the UK's bilateral treaties with Spain:-

    Despatch:- And whereas the people of Gibraltar have in a referendum held on 30th
    November 2006 freely approved and accepted the Constitution annexed to this Order which gives the people of Gibraltar that degree of self-government WHICH IS COMPATIBLE WITH BRITISH SOVEREIGNTY OF GIBRALTAR and with the fact that the United Kingdom remains fully responsible for Gibraltar’s external relations
    Chapter 1:- Whereas all peoples have the right of self-determination and by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development and may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit and international law;
    And whereas the realisation of that right must be promoted and respected in conformity with the provisions of the Charter of the United Nations AND ANY OTHER APPLICABLE INTERNATIONAL TREATIES;

    So why weren't the 1969 and 2006 Constitutions approved by the British Parliament???

    Why is section 16 of the constitution not protected and guaranteed under section 18 (9) and how come sections 1 to 15 also be subject to section 18 (10)???

    Why are we subject to paragraph 8, Annex 2???

    Why can the UK Parliament pass Gibraltar's sovereignty (the land) to anyone else without any restrictions (see despatch and doctrine of UK Parliamentary Supremacy)???

    Why can the UK Parliament pass the people of Gibraltar to the sovereignty of another state without any restrictions (see despatch and doctrine of UK Parliamentary Supremacy)???

    Why is it that the British Government can also do so in the case of Gibraltar (the land - remember Blair's joint sovereignty proposals) but not the people of Gibraltar without their consent???

    Why was this not corrected in the despatch???



  9. We should now get on with what we have, get our house in order and park this "self-determination" quest for a while. The government's approach is the correct one!

  10. Anonymous Parts I to III:

    There are some matters of political detail with which I would take issue but on your analysis of the 2006 Constitution and the residual and overriding poets of the UK Privy Council and Parliament, I am in full agreement with you. Thank you for pointing out section 18(10). I had missed that.

    The long and the short of it is thatbGibraltar,'s politicians (and I mean ALL of them in organized parties except for Charles Gomez , so far as I can recall) sold Gibraltar a pup by describing the Referenkdum on the 2006 Constitution as an "act of self determination. It was no such thing, for any such referendum to be man act of self determination one of the options must be independence. A preconceived exclusion of this choice undermines any validity that the act is one of self determination.

    That it is what the electorate wanted in that it maintains our links with Britain is the case but I believe that this result could have been obtained with an honest exposition by our politicians, yet they chose another course. The "no campaign" was run fairly.

  11. There's a simple answer LLanito-World. It just couldn't be done. It would have created an unprecedented international and european conflict and insoluble problems between major nations and, problems for Gibraltar.

    Serbia's correction (and rightly so) of Bossano's statements to the UN could provide in time another practical solution without disturbing the status quo achieved.

    One of the other credible alternatives, pursued by government, is to tell the UN to embrace a more restricted concept of self-determination in exceptional cases like that of Gibraltar.

    Your complaint is obviously well founded but, is the point not to find the defining constitutional and legal solution for Gibraltar as opposed to 'crying over spilt milk'?

  12. Anonymous 8 October 15:28:

    "It just could not be done" ... Exactly my point but politicians do not admit this. That is the point. They have sold the electorate a pup in the guise of achieving self determination. If they are inaccurate on such a fundamental issue, what about everything else they say? The electorate deserves more from its politicians... That is the point.

    I am not and have never been an advocate of self determination precisely because I have understood the lack of, in fact the impossibility of achieving save on the terms set out by the UK in the Despatch to the 2006 Constitution.

    The 2006 Constitution is an advance in certain regards but not the achievement of self determination. The referendum that approved it was not the exercise of self determination. What it did was give credence to a document crafted by politicians for their own ends. It was deficient because it lacked and lacks democratic checks and balances. Checks and balances do not suit politicians. They seek power so an election once every 4 years using an electoral system that lacks the full range of democratic credentials that it could have suits them. The 2006 Constitution was deficient in not including an improved democracy for Gibraltar. it was this that I argued in the 'no campaign" but this argument was obfuscated by the erroneous belief that was created that voting "YES" was endorsing self determination for Gibraltar.

  13. Anonymous 8 October 10:41:

    "The government's approach is the correct one", is this an act of faith that we all have to believe as if it were a religion? God help us with this type of thinking. I hope it is not prevalent and people question things and reach their own conclusions. I have faith that they do.


    Emilio Peire says the 'LA, LA' "should not have been approved by our Queen, since only a third of the electorate voted for it. A referendum in Malta was not approved with a very much larger favourable vote".

    But the lesson hasn't really been learnt.

    Section 18 (9) (b) enshrines that same test for any change to sections 1 to 15 (fundamental rights/limitations):

    "supported by a simple majority of the VOTES CAST in a referendum of all persons entitled
    to vote in elections to the Parliament".

    Look at the difference in the wording of section 18 (9) (a):

    "a motion proposing that amendment is carried by a majority of at least three-quarters of the TOTAL NUMBER OF Members of the Parliament".

    Contrast section 43 (1): "Save as otherwise provided in this Constitution or any other law, all questions proposed for decision in the Parliament shall be determined by a majority of the votes of the Members PRESENT AND VOTING".

    And to round it all up section 18 (c) is another example of the UK's legal and constitutional supremacy over the Gibraltar Parliament and the Gibraltar electorate:

    "the consent of Her Majesty signified through a Secretary of State HAS BEEN OBTAINED BEFORE ANY SUCH MOTION OR REFERENDUM".

    If that's not enough, where's the constitutional mechanism or framework for the democratic change (with the electorate's consent) to any of the other sections of the constitution excluding sections 1 to 15?

    THERE'S ISN'T ONE and it's back to the political square of the 2006 referendum!

  15. The more one looks at the constitutional text, and in it's wider political context, the more one can see that the concepts of democracy, accountability and the voice of the people have all been stamped under the heavy boots of the politicians in UK, Spain and Gibraltar.

    That makes 4 of us in agreement so far ...

  16. This morning I inadvertently published a comment that was critical of the judiciary. The comment was unwarranted, inaccurate, unnecessary and rude. Consequently I have deleted it. I should also add that I totally disagree with the sentiments expressed about the judiciary in that comment, although this factor is not decisive on whether, in general, comments are published or rejected.

    I have also removed a defence of the judiciary subsequently published (which was what directed my attention to the earlier comment). The defence of the judiciary became non-contextual and not relevant as a result of the first deletion. I would happily publish it again if the writer re-writes and makes it relevant to the general constitutional debate. It makes some excellent and valid points on the protective role of the judiciary, which would enhance the debate.

  17. In order to assist the following is the comment on the judiciary that enhances the debate slightly edited to make it relevant and contextual:

    "The judiciary will inevitably lead the way out of any constitional 'stagnation' through the jurisprudence that develops in the cases and conflicts it decides. It's the norm in most democratic countries and there is no basis for believing it'll not be so in Gibraltar.

    Consider the terms of the judicial oath:

    "I, , do swear [or solemnly affirm] that I will well and truly serve Our Sovereign Lady Queen Elizabeth II, Her Heirs and Successors, in the office of Chief Justice/Puisne Judge/President of the Court of Appeal/Justice of Appeal of the City of Gibraltar and will do right to all manner of people after the laws and usages of the City of Gibraltar without fear or favour, affection or ill will. [So help
    me God.]

    WILL DO RIGHT TO ALL MANNER OF PEOPLE AFTER THE LAWS AND USAGES OF THE CITY OF GIBRALTAR has a very precise mandatory requirement in Gibraltar: the constitution and its principles is the paramount law and their decisions must be fair, just and equitable within the permissible constitutional contraints, if any, that Parliament decides to legislate upon in the general laws it passes for "the peace, good order and government of Gibraltar".

    USAGES is a useful reminder of the people's history, their way of life, their progress and difficulties and the defining characteristics of Gibraltar as a community and society. In other words: common sense, perspective and proportionality at all times.

    WITHOUT FEAR OR FAVOUR AFFECTION OR ILL WILL - this is a constant duty with far reaching consequences. It has clear parrallels with Christ's ministry and its far reaching consequences:

    "I am come to send fire on the earth; and what will I, if it be already kindled? But I have a baptism to be baptized with; and how am I straitened till it be accomplished! Suppose ye that I am come to give peace on earth? I tell you, Nay; but rather division: For from henceforth there shall be five in one house divided, three against two, and two against three. The father shall be divided against the son, and the son against the father; the mother against the daughter, and the daughter against the mother; the mother in law against her daughter in law, and the daughter in law against her mother in law. (Luke 12:49-53)"

    SO HELP ME GOD is not just meaningless symbolism. It's a stark reminder of how difficult the task of the judiciary is [perhaps more so in a small community] and, at least for believers, a healthy reminder that Justice is God's will and commandment for all mankind and humanity.

    That is the true and transparent measure by which the judiciary can ever be judged and held accountable. They're also subject to a Judicial Code of Conduct."

  18. ORDERS IN COUNCIL = "that most undemocratic of Tudor governance devices"???