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.