Tuesday, 28 December 2010

The Civil Service and Protection under the Rule of Law

There is no single definition of the phrase "the rule of law".   In essence, it encompasses the principle that no one is above the law and that  there is a requirement to act in accordance with and within the law.  Any discretion has to be applied within those confines.  The rule of law is a central foundation of democracy.

The mention of issues concerning the rule of law conjures up visions of complex legal courtroom battles fought between senior lawyers in front of senior judges.  This happens but the reality is not that at all.  A first line of protection for citizens is the civil service.  Civil servants have an onerous task to ensure that citizens are not only treated within the law but also in accordance with fundamental rights.  It is only when a Ministers or  a public officer or servant gets something wrong that resort can or would need to be had to legal process that may end up in a court room.

The core values that govern civil servants when serving the public are succinctly set out in the Civil Service Code of the UK.  They are integrity, honesty, objectivity and impartiality.  Each word carries a heavy weight of responsibility for and imposes an onerous burden on each individual civil servant.   It is the responsibility of  each civil servant to meet these high standards but each individual one should be and needs to be supported by the hierarchy of the service and by built in  systemic safeguards.  It is far easier for the body of civil servants to institutionally provide the support within which these standards can be met than for each individual civil servant to face alone the pressures that they may meet.  Each core value is defined.  A brief explanation of each will show the high threshold that has to be met and the consequent pressures faced by civil servants.

In defining integrity, emphasis is put on responsibility, professionalism, the retention of confidence, ensuring proper and efficient use of public money and resources, fairness, efficiency, promptness, effectiveness, sensitivity, use of best ability, accurate record keeping, accurate handling of information and compliance with the law and the administration of justice.  Additionally, the misuse of a position, acceptance of gifts, hospitality or benefits in manner that may reasonably be seen to be compromising or the unauthorised disclosure of information are forbidden.

Honesty invokes truthfulness, requiring the correction of errors at the earliest opportunity and the use of resources solely for the public purposes for which they are made available.  Deception of anyone or succumbing to improper pressures or the prospect of gain are forbidden.

Objectivity requires the provision of evidence based  accurate information, advice, options and facts, the taking of merit based decisions and the heeding of expert and professional advice.  It is wrong to ignore inconvenient facts or relevant considerations or to frustrate the implementation of policies.

Impartiality requires fairness, justice and equity and forbids acting in a manner that either favours or discriminates   against individuals or interests.  It requires service to the incumbent government whilst maintaining political impartiality, the attraction and retention of confidence of incumbent Ministers but in manner that will not undermine the ability to establish a similar relationship with other incumbents at a future date and compliance with restrictions (which are not absolute but may require permission) on political activity.  It is forbidden to act or use resources in a party political fashion or permit personal political views to interfere.

In the small jurisdiction that Gibraltar is, individual civil servants are more susceptible to be pressured to be more subjective and possibly to cut corners in contravention of these core values.  A strong hierarchical system is needed to give support to such an individual when he requires it.  This, together with security of tenure, provides the core defence against the wearing down of standards in public office.  The first port of call for any civil servant with concerns about his ability to meet these core values is his immediate line manager or head of department.  Thereafter there must be further resort available to a higher authority either by the line manager/head of department or the affected individual civil servant.

The recent retirement  of Richard Garcia MBE as Chief Secretary has left a vacancy that needs to be filled with another strong personality.  The person occupying the position of Chief Secretary is sure to be a likely port of call in defence of these core values.  Abolition of this post should not be within the realms of possibility.

Should the Chief Secretary be the final port of call, however?  In the UK, civil servants have recourse to the Civil Service Commission if a reasonable response is not obtained at any earlier juncture.  The 2006 Constitution continues the existence of a Public Service Commission to deal with certain aspects of the public service. One of those is not to act as a final port of call for civil servants dissatisfied with any response to a complaint arising from compliance with the core values.  This is another area in which legislation could fill the gap and improve democracy in Gibraltar.  A civil service that meets the core values is an essential element to deliver democracy in Gibraltar, especially when  recourse to the courts is restricted by cost and the non-availability of legal assistance to the vast majority of the population.

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Friday, 24 December 2010

Some Thoughts on Llanito World's First Anniversary

Well on the 21st December Llanito World was one year old and coincidentally this is my 100th blog! I hope readers have found it stimulating, certainly some of the pieces have resulted in lively and heated discussion. I do not expect and have never expected agreement, what I have looked for (and I believe I have found)  is debate.  I have striven for new angles and fresh thoughts on old subjects.  I have tried to be critical of political hypocrisy.  I have attempted honesty and tried to uncover contradictions.  I hope I have had a measure of success in this. 

To those who I have angered, perhaps self examination might be one answer.  There has been no intent on my part at being destructive.  All criticisms and suggestions are aimed at hopefully people becoming more constructive and thus taking our small territory, Gibraltar to a better place, not with my thoughts only but with the comments that these stimulate.  Some have clearly understood this, regrettably others have not.  I trust that some positive thought will lead them to make a New Year's resolution that will help them deal with the Llanito World philosphy next year.  My message is that I will not be frightened or threatended into silence.  I will stop writing this blog voluntarily and only if and when I feel like stopping.

I believe that I have covered a great variety of subjects.  I think that the Andorra issue is more than well publicised now.  That issue should not distract our politicians from the wider issues that affect Gibraltar.  The liklihood is that next year will be an election year.  This means that the political debate has to be widened and deal with issues that go well beyond the eternal Spanish problem.  Let us not forget that it is not our problem.  It is Spain's problem.  We need to live side by side and with Spain; other than for that consideration, it is not for us to find a solution to Spain's quest to recover Gibraltar and achieve what it views as territorial re-integration.

Our politicians should concentrate a little on helping more those who are less fortunate in society.  This government and past governments and those who work in this difficult vocation have done a lot for this group.  I undertand that but I think that Gibraltar's small size should allow and enable the introduction of a more focussed and personalised social services system.  Such an approach would deal with people's circumstances more specifically and in a more tailor made manner.  I speak with no great knowledge, just anecdotal knowledge gained from social and professional interaction with people.  I would welcome the views of those who are more knowledgeable than me on these matters.  I think a society can be measured by how it deals with the less fortunate.  Any improvement in this will reflect well on Gibraltar as a whole.

One issue that is of great concern to me is Gibraltar's energy policy.  It seems settled that received wisdom is that Gibraltar should be self sufficient in its production of electricity.  I have a more radical view, believeing that in a Europe where sharing and integration of electricity grids is becoming more common, Gibraltar could participate in that sharing.  There should exist a contingency plan to cater for any emergency that may arise in the supply.  What is clear is that how Gibraltar's needs for electricity are presently met need improvement and modernisation.  A new power station was promised and has not been forthcoming yet.  Hopefully it soon will be.  The secondary but equally important consideration is the EU requirement that a significant proportion of this power should come from sustainable sources.  This is a challenge that our politicians should not shirk from meeting.  They need to ensure that our technocrats come up with a solution.

Well there you are some bits and pieces on Christmas Eve.  Let the onslaught begin!  Whatever your political beliefs, principles and ideals I wish you all a great and happy Christmas.

Saturday, 18 December 2010

So the GSD Consider that a Sovereignty Change is a Possibility?

Are you confused by the arguments? Andorra is not shared sovereignty? Andorra is not joint sovereignty? Andorra is shared sovereignty? Andorra is joint sovereignty? Andorra is independent?

These are all questions that have been answered differently by different people. Some of these attempt to support and justify the Chief Minister's surprise assertion in Seville in which he signified possibly favouring an Andorran style constitutional status for Gibraltar. Others oppose and criticise him. What is salutary and interesting is that different concepts of "sovereignty", beyond the emotional aspect only, are at last being debated.

The reality is that there is no definitive answer to these questions. The answer is in the eyes of the beholder. There may not be a definitive answer but there are some certainties. I will attempt to identify some.

There are two princes in Andorra in whom ultimate sovereignty is vested. Fabian Picardo in his Chronic piece identifies those powers contained in the Andorran Constitution that are vested in these two princes. I do not intend to repeat them here. They simply do have powers. Like it or not this renders Andorra a joint sovereignty. Jamie Trinidad in his own piece in the Chronic tries to lessen the emotion in the argument by avoiding the use of the words "joint sovereignty" and alluding to "shared sovereignty".

What Jamie does,he is right on this point, is to emphasize that Andorra is considered by the international community to be an independent state with a representative in the UN. He argues that this, conjoined with the vesting under the Constitution of power in the people of Andorra, is such a diminution of the control shared or possessed jointly by the co-princes that it is not a hugely forceful or relevant consideration. This analysis is legally correct but, unfortunately, it suffers one insurmountable problem: political, geographical and power play realism.

What do I mean? First the simple consideration that Spain's claim is not satisfied by an arrangement similar to that of Andorra. Spain's claim is for territorial reintegration. This is not satisfied by esoteric and medieval concepts of co-principalities. Spain is geographically closer to Gibraltar. Spain is more powerful than Gibraltar on the international stage. These factors are only counterbalanced by real (not symbolic) British sovereignty.

In any event were Spain to agree it, what safeguard would Gibraltar have against its use of the residual power of the princes to advance their claim? Jamie suggests that one safeguard would be that the princes would be empowered in their personal and not national capacity. One would have to be naive to the extreme to believe that such a promise would reflect realities.

This opinion is clearly garnered from viewing the proposal from the perspective of Gibraltar. Viewed from the perspective of Spain and Britain, the panorama quickly changes. Spain's "prince" would be motivated by the national interest of Spain to reintegrate the territory of Gibraltar into the Spanish state. The British "prince" would be 1300 miles away without the same national interest drive that the Spanish "prince" would be motivated by. Certainly, acting in his personal capacity, the British prince would not have the power of the British government and its international standing supporting him for the benefit and protection of Gibraltar.

Additionally, the enormous differentials in size and international clout between Spain and Gibraltar cannot be ignored, nor can the reality of Spain's historical emotional reaction to Gibraltar. The size issue is presently neutralised by British sovereignty and the UK's responsibility to look after Gibraltar's international affairs. No real changes can occur by a negotiated arrangement without a substantive change in emotions and attitudes. Nationalistic considerations will come to the fore, both in Gibraltar but more importantly in Spain. These could undermine the viability of any arrangement in the international status of Gibraltar.

Where I simply get lost is trying to reconcile the Chief Minister's assertion, in the same speech in Seville, that independence is not an option for Gibraltar yet his suggestion of possibly introducing an Andorran style constitution is defended in the grounds that it is independence? The Chief Minister said in the Chronic "Andorra is a sovereign independent state ..." The only manner in which I can try to reconcile these arguments is on the basis that the application of a similar status to Gibraltar will fall short of independence in some manner that would placate Spain's claim to territorial reintegration. This matches the Chief Minister's reticence to ask for independence with resolving the Spanish concern that Gibraltar is not part of Spain's national territory by application of an appropriately modified Andorra model. If I am wrong then perhaps the Chief Minister can clarify that the GSD party's policy is to seek eventual full independence for Gibraltar.

It is also odd that not a single GSD Government Minister has been heard to comment publicly on whether or not the suggestion is acceptable to them. When will we hear from any of them? Do they each not have a view on such an important and fundamental issue such as this? Surely they each do, the electorate deserves to know what those views are. It is not enough for a party to advocate a policy of independence for Gibraltar yet hide behind the mantra "... only if the people of Gibraltar want this ..." Where is leadership in such a policy? My view, I simply do not consider that independence is an achievable or desirable goal ... so, as I have said in the past, leave well alone, we are doing just fine and only need minor governmental and electoral reforms to reduce the democratic deficit.

Sunday, 12 December 2010

Constitutional Rights- Is there a need for a Citizens Advisory Service?.

The existence of constitutional rights and freedoms is irrelevant to most citizens unless breaches of these can be cheaply and easily enforced. Gibraltar has historically been fortunate in that the European Convention on Human Rights has been incorporated as law in Gibraltar since the 1969 Constitution. The 2006 Constitution enhanced the position by correcting certain omissions in the 1969 Constitution. Gibraltar in this regard has been more fortunate than the UK in as much as the UK did not achieve a similar status until 1998 when the Human Rights Act was passed.

For those who do not know the rights contained in our Constitution, they are extremely wide ranging. They range from rights that in todays world in Gibraltar have become irrelevant to some that are extremely relevant. I refer primarily to rights like the protection of privacy, the protection of law, freedom of conscience and religion, freedom of speech, freedom of assembly and association, freedom of movement and protection from discrimination.

The ability to enforce these rights and freedoms is what is important, unfortunately the reality is that the cost of doing so can be prohibitive. There are alternative and cheaper routes available, which whilst not ideal, citizens should bear in mind.

The primary enforcement provision contained in the Constitution allows access to the Supreme Court of Gibraltar. The Supreme Court has wide powers to act in the event that it holds that there has been an infringement of any right. In reality, however, this redress is not easily accessible by the general public. usually it would involve the engagement of a lawyer, first to advise, second to guide any applicant through the procedural maze and then to argue the legal issues on his behalf. The expense involved in this is substantial. In addition an applicant is faced with the risk of an order to pay the other parties costs should the Supreme Court decide that his application should not succeed. all this has a major deterrent effect.

Legal assistance is not readily available save to the seriously impecunious. This itself could in the right circumstances be a denial of the right to the protection of law, if it can be shown to be a denial of a fair hearing within a reasonable time. The circumstances in which such a plea would succeed are, unfortunately, limited.

If no alternative remedy is available,these rights and protections can, due to the complication and expense of enforcement, be an irrelevance in the event of anyone suffering from a breach of any of them. Fortunately we live in a society that in the main voluntarily applies these basic rights and protections, so breaches are infrequent. If one suffers from a denial of a right or protection, there alternative avenues for redress available.

The first and obvious step is to familiarise oneself with the rights and protections. This is easily done by reading through Chapter 1 of the 2006 Constitution, which can easily be found online. Secondly, one should bear in mind that these provisions are of general application as are all other laws. Most situations where a denial of rights occurs or is provoked can be remedied in discussion. If that fails, avenues for formal or informal review are usually available to a more senior individual or tribunal, be it in the context of a public authority or within ones employment.

In addition the availability of recourse to the Ombudsman should not be underestimated. This is available when the denial is by the government, most statutory bodies, public utilities and contractors and certain other bodies like Calpe House and Bruce's Farm. The Omdudsman has wide powers to investigate and report on complaints, the effect of which on the affected organisation should not be underestimated.

Personally, I believe that additional recourse should be made available by an organisation that takes it upon itself to advise and help citizens when failures or denials of constitutional rights and protections occur. The creation of such a body would greatly enhance the ability of persons not only to understand their rights but also to have a cheap option to dispose of any complaint that they might have. Perhaps a free citizens advisory body staffed by volunteers would be one answer. There are enough young lawyers who should be willing to provide such a service. Advisory service of this type are widespread in the UK. Any volunteers? I am happy and willing to help to organise one.

Thursday, 2 December 2010

Where Is Gibraltar Now?

At the end of March 2006 the UK and Gibraltar Governments announced that agreement had been reached on a new Constitution for Gibraltar providing for a modern relationship between Gibraltar and the UK. This new constitution enshrined enduring British sovereignty, whilst we in Gibraltar so wished that to continue. The text also confirmed, for the first time, Gibraltar's right to self determination. This recognition was tempered by the reservation, on the part of the UK, that independence was not possible without Spain's consent. Weakly Gibraltar expressed its disagreement to this constraint, in my view, a disagreement that is unenforceable in practice. Importantly, it was confirmed (in the preamble) that this new constitution provides for that degree of self government which is compatible with British sovereignty and the fact that the UK is responsible for external affairs. What does this mean?

If Gibraltar wishes, as it does at present, to remain under British sovereignty with the UK responsible for its external affairs, then there is no scope for increased self government. The door to any further negotiation with the UK to expand the powers of Gibraltar's Parliament and its Government has been firmly closed by the UK. This has been endorsed by the Gibraltar Government's acceptance of the new constitution and, more significantly, by the referendum in 2006 that adopted that constitution.

We can argue for ever that the new constitution delegates all the necessary powers already. I am not an adherent to this opinion, not least because in the Chagos Island's case the Judicial Committee of the Privy Council held that the words "... for the peace, order and good government..." are words that limit and restrict the power of a legislature in a British Overseas Territory, which is what Gibraltar continues to be. Additionally, more blatantly, because the UK has power, under the constitution, to impose direct rule . If anyone doubts that Gibraltar is a British Overseas Territory (not nation), that fact is declared and confirmed in the Despatch to the new constitution.

When one conjoins that the UK has closed the door to increased self government with the UK's view that independence is not an option without the consent of Spain, there is little room to achieve a changed status, which is what the Chief Minister said he aspired to, without Spain's consent. This is an especially valid argument for those, like the GSD, who preach the belief that the new constitution and its acceptance in the 2006 Referendum was an exercise in self determination, because it most certainly cannot be that unless and if it devolves the maximum unconstrained power to Gibraltar.

Thankfully all this actually leaves Gibraltar in a place where I believe most want it to be. We are able to legislate and govern ourselves without interference, so long as our Parliament and government do not transgress the requirement that it be ".... for the order, peace and good government of Gibraltar ..." If there is any attempt to transgress these limitations we have the safeguard that the UK as power to interfere or more appropriately the courts can be requested to consider the circumstances. Additionally the UK is responsible and obligated to look after our external affairs and security with the safeguard that there will be no change in British sovereignty without our consent.

Why oh why, then, do some of our politicians harp on and on about further changes to our status? "Leave well alone" is my mantra. If in the future there is a change in our collective opinion we can re-look at our various international relations.

What about Spain? Well it is Spain that claims sovereignty, so it is a Spanish problem. It is not "the Gibraltar problem". Gibraltar is happy in the main. Spain can read the new constitution just as well as anyone else. It knows what it should do. Convince future generations of Gibraltarians to change their minds, if they can and if Gibraltarians ever will change their minds. One thing is certain Spanish harassment, like incursions in the bay, put any potential for advance of their case back by years; many in Gibraltar will say excellent, keep it up Spain!

What those self-same politicians should be concentrating on is doing their jobs, which is to govern Gibraltar. It is not to strut the international stage to boost their egos and pretend that they are important international statesmen. They should also concentrate on improving those parts of our institutions that remain untouched by the new constitution, briefly, to deliver more accountable democratic and transparent government ... and, oh yes another thing, to improve the lot of the Gibraltarians, especially the less privileged amongst us.

I know who will get my vote. The party who not only promises to do this but which provides guarantees that it will actually do what it promises. What if none of them make me that offer? Well I will exercise my right to vote by casting a ballot paper without a single cross on it.