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.