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.