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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