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 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 ...