The system of government that has been bestowed on Gibraltar is a UK parliamentary system in which the principle of Parliamentary Sovereignty is embedded, save that our Parliament does not have the supreme sovereignty such as empowers it to change the 2006 Constitution. In this piece I will explore briefly what this principle encompasses. I question whether it is actually followed and adhered to in Gibraltar. I suggest that its breach proves the case for the need of electoral and parliamentary reform.
The importance of this principle is that Parliamentary Sovereignty is a core and fundamental foundation of a parliamentary system of government. It is an important basis of democracy; without Parliamentary sovereignty and the rule of law democratic accountability and transparency is seriously damaged. The sovereignty of Parliament is paramount. Parliament legislates. The legislature is Her Majesty and the Gibraltar Parliament (section 24, 2006 Constitution).
The executive arm of government in Gibraltar is Her Majesty but is " ... exercised by the Government of Gibraltar, either directly or through public officers as prescribed by this Constitution or by any other law" (section 44, 2006 Constitution). The Government of Gibraltar is constituted by Her Majesty, as represented by the Governor, and the Chief Minister acting within the Council of Minister (section 44, 2006 Constitution).
Legislation is what authorises the doing of acts by the executive arm of government. This is part of what is encompassed by the phrase the rule of law, a second fundamental principle that comes with the parliamentary system . The rule of law includes many principles. One is that everyone is equal before the law and, importantly, no one is above the law, which includes the principle that even the executive arm of government is not above the law.
The importance of the rule of law is that it is Parliament that authorises, oversees and supervises the acts of the executive. The executive and public officers should not act without the authority of an Act of Parliament, especially as Gibraltar is a subsidiary government with no prerogative powers. In this way the Opposition (in the absence of any back bench Members of Parliament) can hold the Government of Gibraltar to account. This is a crucial ingredient of open, transparent and accountable government.
Does this happen in practice? I would question that there is a rigid adherence to the principle of the rule of law by successive Governments of Gibraltar. There are examples through the years that this has not been the case. To pick an example that transcends all governments, present and past, where is the Act of Parliament that authorises the Government of Gibraltar to construct government housing?
When I have asked this question of past and present parliamentarians, they point me to the successive Appropriation Acts. These, however, authorise the expenditure not the substantive acts. I would question the application of those moneys on expenditure that is not authorised by substantive legislation. This in turn raises the question of whether those who do apply these monies cannot be surcharged under the Public Finance (Control and Audit) Act. Surcharging means making them personally liable for the payments made. The rule of law and surcharging are an important control on the Government and public officers and safeguards against anti-democratic and arbitrary action by any Government of Gibraltar or public officers.
The culmination of the argument that I have had with past and present parliamentarians is that in practice what I am highlighting is a theoretical and academic issue. The reason they give is that, even were I to be right, the problem can be resolved by any incumbent Government of Gibraltar by it passing retrospective legislation, after all governments have an inbuilt majority in Parliament, made up of exactly all the persons who are Ministers and so are the executive.
That there is a systemic capacity in Gibraltar that permits the unchallengeable use by the executive of the legislative process to pass retrospective legislation is precisely one of the most significant abuses of the Parliamentary system and of Parliamentary Sovereignty. It is a practice that is widely frowned upon in other parliamentary democracies. It is anti-democratic. It is exactly this abusive ability that makes the case for the need of checks and balances, starting with ensuring that there are backbenchers in Parliament. This will only happen with electoral and parliamentary reforms.