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.
I am glad that you have brought up this topic since I believe it should be linked to lawyers obtaining a QC. Though I know some lawyers do work pro-bono there are very few and if you look at QC's locally I challenge anyone to tell us what pro-bono work these gentlemen have done. Robert I think that what you are proposing is a very good idea and I for one would be willing to help and I will approach you soon with this in mind. lets see how many lawyers who contribute to this blog are willing to come up and help!
ReplyDeleteI have always done pro bono work in deserving cases and know of no lawyer who has not done it at some time. I would welcome Anonymous at 11.55s confirmation that he / she also routinely works without payment.
ReplyDeleteI would agree with Charles.
ReplyDeleteIs this not something that is or should be dealt with by the Citizens Advice Bureau??
ReplyDeleteAnon 11.55 said.
ReplyDeleteThe point I am trying to make is that in order to get a QC lawyers should be demanded to do a certain percentage of pro-bono work. I believe that some in Gibraltar have received their QC just because they say, do, and socialise with the right people as oppose to those like Charles and you Robert who claim to do pro-bono work. In fact you two might even be an example of my argument that is you do pro-bono work and neither are QCs. Whilst others have done sweet FA and have that title.
And in relation to the CAB mentioned by Anon 23.11 if you look at Gibraltar the CAB have not got a single lawyer in their ranks to deal with cases appertaining to the department. Why??
The following is the Charter of ? and its breach is challengeable before the Supreme Court of Gibraltar:
ReplyDelete(i) To publish ? as an independent newspaper primarily concerned with serious issues for the benefit of the community throughout the whole of Gibraltar
free from any form of personal or of party political, commercial, religious, or other sectional control.
(ii) To follow, in the publication of ? an editorial policy with the following as its principal objectives:
A. The support of constitutional democracy expressed through governments freely elected;
B. The progressive achievement of social justice between people and the discouragement of discrimination of all kinds;
C. The promotion of a society where the quality of life is enriched by the standards of its education, its arts, its culture and its recreational facilities and where the quality of spirit is instinct with tolerance and understanding free from all religious bias and discrimination;
D. The promotion of peace and tolerance and opposition to all forms of violence and hatred so that each man may live in harmony with his neighbour considerate for his cultural, material and spiritual needs;
E. The promotion of understanding of other nations and peoples and sympathetic concern for their well being.
(iii) In pursuance of the foregoing and to enable the readers of ? to reach informed and independent judgements and to contribute more effectively to the life of the community, to ensure that the following principles govern the publication of ?:
(a) that news shall be as accurate and as comprehensive as is practicable and be presented fairly;
(b) that comment and opinion shall be informed and responsible, and shall be identifiable from fact;
(c) that special consideration shall be given to the reasonable representation of minority interest and divergent views.
One hundred foreign criminals detained in Malaga in nearly ten months. With figures like that, the Costa del Sol is no longer a safe place to hide (23.11.10)
ReplyDeleteAre they heading in Gibraltar's direction?
Charles is not a QC because he takes on cases which the government don't like and he is the first lawyer in Gib to come from a council estate, Humphreys I believe. He should join the yacht club and adopt a fake accent LOL!
ReplyDeleteI very much agree with Roberts opinion on this. The present recourse of going to court is great if resources aren`t a problem or you happen to be a benefit claimant living in a council flat. For the rest of us home owners, the prospect of putting the home your children live in up for grabs (if you lose) is certainly not an option.
ReplyDeleteChagos island rights?
ReplyDeletePlease check Websites. Full details regarding the Chagos island inhabitants and their rights.
Between 1968 and 1973 the British Government cleared the entire Chagos Archipelago, officially known as British Indian Ocean Territory (BIOT), of its inhabitants as part of moves to build a US military base on the biggest island, Diego Garcia. Today, there are two main outstanding disputes arising from these events. One is between the Chagos Islanders (also called Chagossians or Ilois) and the British Government over the legality of the former’s removal and whether they have any right of return; the other is between the UK and Mauritius about the UK’s claim to sovereignty over the Chagos Archipelago.
Between 1998 and 2008, lawyers for one group of Chagos Islanders pursued the issue of their right of return to the Archipelago through a series of cases in British courts. This endeavour ended in 2008 when the Law Lords narrowly found in favour of the British Government. However, the group of Islanders has now taken its case to the European Court of Human Rights, which is yet to decide whether it is admissible. The UK Government is currently contesting the case. There has also been criticism of the previous Government’s decision, announced on 1 April, to establish a Marine Protection Area around BIOT. It has been claimed that the consultation process was inadequate and the rights of Chagos Islanders have been ignored. Parliamentarians sympathetic to the idea that Chagos Islanders have the right of return also accused the previous Government of reneging on a promise to brief Parliament before a decision was taken.
Successive Mauritian governments have asserted a claim to sovereignty over BIOT, arguing that it was illegally separated from Mauritius before the latter gained independence in 1968. The UK has repeatedly rejected these claims, but has undertaken to cede BIOT to Mauritius when the territory is no longer required for defence purposes. A formal dialogue between the UK and Mauritius on issues relating to BIOT was established in 2009. However, the Mauritian Government has opposed the British decision to establish a Marine Protection Area around BIOT and has suspended its participation in the dialogue.
This note provides brief background about the situation of the Chagos Islanders, paying particular attention to the legal dispute over whether they have the right of return. The note is not comprehensive in its coverage and will not be automatically updated.
GF
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.
ReplyDeleteThe 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.
What the citizens and professionals want to know is what are the cheaper routes you state are available?
GF
Actually does anyone know what the CAB does on a day to day basis and whether they are value for money.
ReplyDeletePerhaps they could have a lawyer in their ranks giving citizens general advice on the scope of their constitutonal rights
WHERE-IS-ROBERT NOW GIBRALTAR NEEDS YOU.
ReplyDeleteUN AMIGO DE VERDAD
P
I am a young lawyer who has an arrangement with the CAB, whereby whenever a client of theirs requires legal advice I offer a free consultation meeting. If the client agrees to meet me, in that meeting I inform the client on the merits of their case, how much my fees would be and if possible recommend an application for legal assistance. I know of other lawyers who have this kind of an arrangement with the CAB; in fact it was a lawyer friend who recommended that I should contact CAB about offering my services. So the CAB clients do have access to legal advice if they want it, albeit in a limited way.
ReplyDeleteNonetheless, I am in agreement with Anonymous at 13:09 suggestion that the CAB should employ at least one lawyer or as Robert suggests a free citizens advisory body staffed by lawyer volunteers could be created.
The written, unpractised constitutional rights.
ReplyDeleteThe ability to enforce these rights and freedoms is what is important; unfortunately the reality is that the cost of doing so will be prohibitive to the majority of the citizens especially those of the middle class and small business.
Injustices and abuse are committed against citizens on a regular basis by many including police and governments; familiarising oneself with these rights would be difficult to the majority to understand and leave it to the professional to advice.
What’s required is having free UNCONNECTED GOVERNMENT citizens advice bureau, office of fare trading, ombudsman, different committees and commissions made up from our citizens without any participation from members of our authorities, these is what is required in Gibraltar, those who cannot afford the primary cost involved let alone risking a court case would not contest and ABANDON THEIR RIGHTS TO THE INCONTESTABLE SYSTEM OPERATED IN GIBRALTAR.
Pro bono cases are simply cases lawyers and QC’s will take on if they believe there is 75/100% chance of winning. I am aware that Charles and Robert have done some pro bona cases.
The majority of our court cases are penny less people or small business that are charged for 101 reasons, some are lucky and might get a Legal aid lawyer minutes prior to their hearing.
The written constitution rights mentions 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. RIGHTS AND FREEDOM FOR ALL CITIZENS HAS TO BE ENFORCED NOT JUST TALKED ABOUT.
1704
After Henry Pinna's retirement as Ombudsman my Chambers engaged him to assist in advising in areas which might not be covered by the official advisory bodies. We offered this service for a few years but eventually found that most areas were covered by the CAB and the excellent Consumer Affairs Department as well as the Ombudsman's Office. We are still available to act pro bono in deserving cases (i.e. where people are unable to afford legal fees and have a good case). Indeed some of our most substantial cses have been done pro bono. I compliment Neil Lopez and all those others who offer their services in this way. (PS. re the Anon at 08.12: In my youth I did live for many years in the "Humphreys" estate but I am originally from "La Escalera del Monte" - I will ponder on the helpful suggestion that I should affect an upper class accent as a means of achieving professional advancement. Do you have any suggestions as to who I should emulate?)
ReplyDeleteThe End!
ReplyDeleteWhy not articulate your words like our Chief Minister? Can't get much more pompous than that. By the way, posh accents no longer heard in the RGYC. You need to go to Sotogrande or Guadiaro to hear them these days.
ReplyDeleteGianni, you could always pop into Triays if you are looking for pompus accents.
ReplyDeleteRV
ReplyDeleteGreat write up on what Gibraltar deserves to have under our Constitution what we deserve and what we are allowed to have by government is a million miles away.
I concur with your comments of a free citizens advisory body being essential, would you consider a write up as to why we are not allowed to have an office of fare trading (OFT) despite the many official requests over the years and advice on the matter.
Small business
Public service has an independent role in maintenance and development of democracy.
ReplyDeleteIn all democratic nations citizens have a set of rights, which are no longer subject of debate. Development of democracy in such areas occurs through increase in right satisfaction.
In all democratic societies there is for example a standard that women should have equal access to work, advancement and equal wages for work of similar value. Yet there is not a single country in which that set of norms is fully met.
This is just one example of many in which public servants should act “with all the deliberate speed” in order to close the gap between the normative statements and the social, political and economical reality.
Leadership of public servants (particularly those in positions of management) should not be limited to preparation of the next year budget, but creating policies, which will indicate to citizens that the promises of democratic theory are being realized.
Citizens Don’t Expect Overnight “Miracles“but can and should expect that the system as a whole moves towards fulfillment of the lofty promises.
Democracy desperately needs increase in credibility. Public servants should avoid participation in propaganda without substance, but concentrate on the delivery of equality of all citizens.
Lawless