Is the Tripartite Process Destined for the Deep Freeze?

The more dramatic news this week is undoubtedly the repeat incident that has occurred between The Royal Gibraltar Police and the Spanish Guardia Civil in British Gibraltar Territorial Waters. This incident may by itself destine the tripartite process to the deep  freeze at the initiative of Gibraltar  (although it is probably the appropriate forum to discuss solutions to ensure the security and enforcement of law and order at sea) but it is also having the effect of overshadowing a prior important piece of news.

The news item in question is that the Spanish Foreign Minister, Ms Trinidad Jimenez, is reported as having said that she wishes to cool down the tripartite process and does not wish to give impetus to further tripartite meetings. This news is reported online in "El Confidencial Digital" on the 23rd April 2011. It is subsequently repeated (from that same source) in the Spanish newspaper ABC. The report gives one reason for Ms Jimenez having formed this view as being that Ms Jimenez feels Peter Caruana in this election year will want to gain votes from the sovereignty issue and that she does not wish to play that game.

Assuming that this report is accurate. It raises two glaring questions in my mind. First, why is Spain so concerned with Peter Caruana gaining votes at the forthcoming election from the sovereignty issue using the tripartite process? Secondly, is Spain's actions in consonance with past agreements and/or pronouncements made jointly by Britain and Spain on Gibraltar?

My view is that on both fronts Spain is cutting its nose to spite its face. Past history shows that Spanish policies toward Gibraltar have this tendency. The most salient example was the closure of the frontier by Franco's Spain. That Spain cuts its nose to spite itself is probably much to the pleasure of the vast majority of Gibraltar. That Spain should concern itself with Gibraltar's elections  is an unnecessary and uncalled for interference in Gibraltar's internal politics. It may result in unintended consequences for Spain.

If indeed the reason given by Ms Jimenez is a true reason (difficult to believe that such direct interference in internal matters would exist), then one must conclude from it that the Spanish Foreign Secretary, and, therefore the Spanish Government, want to see the end of Peter Caruana's government. That analysis can only lead to a further conclusion which is that the Spanish Government see Peter Caruana as a hindrance to advancing its case to recover the sovereignty of Gibraltar. If that conclusion is right, the actions and statements of Ms Jimenez do not undermine but rather increase Peter Caruana's chances of being returned to office. The very opposite of what it is reported that she may want to achieve.

Why? Simple, she is giving Peter Caruana the very foundation by which he can convince the people of Gibraltar that British sovereignty is in safer hands under a government led by him than any other person. When will the Spanish Government bring into account, in determining its policy toward Gibraltar, that the vast majority of Gibraltar does not want a change in the sovereignty status of Gibraltar. Until Spain factors in this basic reality nothing will change because, in its eagerness to achieve its aims, it will follow policies and take actions that will not advance its case, much to the joy of Gibraltar. The Gibraltar problem will not be solved it will be dissolved, as Gibraltar's canny politician Sir Joshua Hassan used to say.

This brings me conveniently to my explanation of my views on the second question. Ms Jimenez intentions are clearly at odds with recent historical agreements and/or pronouncements. Let us ignore what agreement and/or pronouncement is or is not extant. Let us just look at two themes that are a common thread, remembering that both Spain and Britain have signed up to all of them.

Beginning with the Brussels Agreement of 1984, in that agreement, it was accepted that the British Government would fully maintain its commitment in the constitution to the people of Gibraltar, namely not to transfer sovereignty against the wishes of the people of Gibraltar. The agreement also clearly indicated the desire for mutually beneficial co-operation on economic, cultural, touristic, aviation, military and environmental matters.

In the much decried joint sovereignty statement made to the UK Parliament in 2002 by the then Secretary of State for Commonwealth and Foreign Affairs, Jack Straw, one of these same themes come across again.  He emphasizsed that any package that came out would be put to the people of Gibraltar in a referendum. It would be the people of Gibraltar who would decide. Any package had to be acceptable to the people of Gibraltar.

Then in 2004 came the Trilateral Agreement in which it was agreed that "... through this forum of dialogue ... the parties shall endeavour to create a constructive atmosphere of mutual confidence and co-operation for the benefit and prosperity of Gibraltar and the whole region, in particular the Campo de Gibraltar". Once again a repeat of the desire to co-operate for everyone's benefit.

The recurring themes are, first, that in the end analysis the people of Gibraltar will decide on issues of sovereignty but, secondly, an atmosphere of mutual trust would be built up, by co-operation on many fronts for the benefit of the communities on each side of the frontier. This has greatly benefitted the Campo de Gibraltar economically already and continues to do so. The regional economy is not in a state for the Spanish Government to take steps that will undermine the enormous economic benefit brought to the region by Gibraltar.

Taking into account these arguments, it is nigh on impossible to accept that the report in"El Confidencial Digital" is accurate. It is difficult, if not impossible, to believe that Ms Jimenez will undermine Spain's own attempts at creating an atmosphere for long term normalisation of the issues that surround the sovereignty of Gibraltar and could adversely impact on the immediate hinterland's economic prospects. Time will tell but I am incredulous that the progress made so far, albeit small in the eyes of Spain,  will be reversed by a decision by Spain's Foreign Secretary to freeze the tripartite process. This is especially the case now that both the GSD and GSLP parties are committed to this process on the basis that it has no adverse sovereignty connotations. This condition is an unavoidable reality whilst popular sentiments in Gibraltar continue to be  as they are.

Elections, My Blog, My Election Candidature and some Bits and Bobs

Its the Easter Long Weekend and so news is limited. It is a good time to ponder and write about a few ideas, thoughts and possibilities, especially as it is looking more and more likely that the election will be in the Autumn, not late spring or early summer as some had speculated. This has not come as a surprise to me. I was the person who on GBC's "Viewpoint" opted for an October election.

If the election is in October, the only available date is the 27th because the two weeks immediately preceding that date are jewish holidays that, I believe, fall on Thursdays  Thursday is the favoured day for elections. It could be the first Thursday of November but unlikely to be much later because under the Constitution Parliament is dissolved mid-November. If the Chief Minister delays too much it would take away his advantage of surprise. Surprise that will not in fact advantage his party, the GSD, too much because everyone seems ready and poised for an election at any time. The main issue for the Chief Minister, as I see it, on timing is assessing if and when the GSD's  "goodies", which would include his favoured projects being completed, might help the GSD at the ballot box.

Some have suggested to me that my declaration that I will stand for election has undermined the authority and credibility of what I write on this blog. I would beg to differ. I will be standing as an Independent, which is the first argument against that criticism. Also, I have published the Core Principles upon which I will base my election campaign. These Core Principles are focussed on but, more importantly, they directly reflect the views that I have expressed (and continue to express) on this blog. I do not believe that anyone is non-political in a partisan way, each have either more conservative or, as is my case, more liberal leanings. My politics are clearly reflected in what I write on this blog and what I have written long before even deciding to stand for election, so what I write is not and cannot be compromised by my election candidature. My election candidature does not, therefore, reduce the impact of what I write or make it more partial. The opposite is true. It shows my openness, frankness and transparency.

Others have suggested that tactically it would be better for me to stand at the election alone. Others have commented exactly the opposite that breaking the "Block Vote" alone is an impossibility. I have been pondering this conundrum long and hard. I am beginning to be convinced by the former rather than the latter camp. There are various reasons for this. First and importantly it is massively difficult to get people to openly declare themselves as candidates for a group that has only a speculative chance of success. Candidates for the GSD and GSLP are incentivised and, indeed, protected in their personal and work lives, by both the prospect of success and the collective power of each of those parties. The PDP gathers together many of the dissidents of both the GSD and GSLP who are prepared to openly stand for election. That leaves a very small or even non-existent pool of people from which to find 10 candidates to field at an election.

The choice one has is either to field 10 candidates or to go it alone, any lesser number diminishes the chances of successfully breaking the "block vote" because one is not offering an alternative government. The reason is that one individual candidate with a well aimed campaign can mop up votes from both the GSD and the GSLP. The strategy would be to target the weakest candidate from each of these parties. At the same time promoting the reality that one Independent candidate in Parliament, whilst a lone voice, would be a dissident voice that can be a catalyst for major change in Gibraltar politics and democracy. The mathematically possible best result is 8 GSD, 8 GSLP and me! However it is statistically highly improbable and, probably, also politically so because of the "presidential" style of electing a Chief Minister by "block voting" for the 10 candidates of one party, thus converting 10 votes into 1. That result, however, would ensure a democratic revolution in Gibraltar.

I have been asked whether I have people to help in an election campaign. The answer to that is that I have many volunteers whom I would like to thank immediately. I also wish to apologise to them because I still need to organise a meeting. I have been under extreme pressure at work for the last 8 weeks, aside from writing and moderating this blog. I have a relatively busy schedule after Easter but I have to and will make time to organise that meeting. It is important because I will then not be alone, at the very least, from an organisational position. I would hope that a small group would be assigned certain responsibilities which would be a great help and relief to me.

As for any campaign, obviously an individual Independent candidate is at an enormous disadvantage. He  or she gets less air time on GBC and less newsprint in the written press, importantly the Chronic and Panorama. The internet is the important new media that can counteract this disadvantage, not to call it a democratic deficit. In this matter the PDP are right. Gibraltar's election system is one of individual voters yet the press treat the contest as exclusively a party one.

There is no point fighting that, it is the way it is, so one has to attempt to get ones message out in alternative media and by preempting an election and getting as much coverage as possible in the traditional press well before the election campaign. I have done both so far thanks to this blog. This blog spawned a very successful Facebook page with over 2200  adherents with whom I can communicate instantaneously. That will make a difference because they will become my campaigners by stimulating interest and discussion within their families, friends, clubs bars and restaurants. Lets see what happens ...

I cannot be more open, frank and transparent. I have laid bear all my thoughts and plans for the next election. I am sure that I will receive many differing views and opinions following this piece. They are all welcome, will be looked at, considered and put into the melting pot. I believe that change is on the card but is going from the GSD to the GSLP sufficiently radical? I believe it is not. Electing catalysts into Parliament will make the change that so many want. The only way to achieve it is to break the "Block Vote".

Does Picardo's Leadership of the GSLP Really Herald Political Change?

The change of GSLP leader and consequent change in Leader of the Opposition has now been cemented. That transfer of leadership alone marks a sea change in politics in Gibraltar. The new leader foretells more fundamental changes if one goes by the press reports of Fabian Picardo's acceptance speech. He has drawn the election lines in the sand by signaling a reversal of roles. The GSLP have taken the political initiative. The GSD now have to prove their collective political acumen and not rely on the perceived reputation and ability of a single individual, Peter Caruana.

There is clearly a reversal of positions.The GSLP, once seen as the pariah of the UK, now becomes the party that confidently proclaims "The GSLP values the relationship with the British Crown. And this GSLP Chief Minister will extend a hand of partnership and deep friendship to the UK." Conversely Mr Picardo has picked up on an issue highlighted in this blog, in my last piece, that there is evidence, following the recent visit of the Minister for Europe, that relations between the GSD Government, i.e. Peter Caruana, and the UK seem strained. Mr Picardo put it in terms that "... the state of relations with the UK is not as rosy as Mr Caruana would have us believe."

The continuation of the trilateral process on the basis that it is without any sovereignty price accurately reflects the thinking of the vast majority of Gibraltar, as does the principle that the issue of sovereignty is a unilateral issue. This is recognised in the Despatch and Preamble to the 2006 Constitution. The unknown is the reaction to this reality from Spain. It should be pleased with a continuation of the trilateral process. That process has brought benefits to the immediate hinterland, which is suffering economically massively. Spain's reaction cannot be surprise. Spain is well aware of the views of Gibraltar as reflected in Mr Picardo's speech. It is Spain's actions that will determine the longer term feelings of the people of Gibraltar. Impatience on their part is simply it scoring an own goal. Spain should ponder long and hard before instigating any aggressive moves against Gibraltar, any such action will prove counterproductive to it.

The announcement of the pursuit by the GSLP of real democracy is to be welcomed but falls short of what is needed. Mr Picardo asserts cabinet government, which would be a huge improvement on the rule by one person of today. That is half the picture, dealing only with the executive side of government. The other half is the separation of powers between executive and parliamentary government and adherence to the rule of law.  Separation of powers is only achievable with electoral and parliamentary reforms. I know Mr Picardo has plans on these fronts but I am not sure whether those plans will go as far as I am espousing. Hopefully they will be included in the GSLP/Libs manifesto and will be sufficiently radical.

Another breath of fresh air on the democratisation  front is his statement that " GSLP MInisters will not be heads of department - they will be ministers in charge of policy". This statement is the very essence of the philosophy of empowerment of the civil service that I have written about in this blog. Mr Picardo joins up this promise with the promise of support for training and development of public servants to provide the best public service possible. These two issues go hand in hand, the former will not work without immediate and attentive application of the latter.

Many of these announcements by Mr Picardo are policies espoused and pushed by the GSD in the 1996 election (but quickly forgotten and not implemented by them) now they have been adapted and modernised by the GSLP. They have been adopted, thankfully and become the property of and bedrock of the GSLP's election campaign: good relations with the UK, fair, open and transparent government, collective responsibility, political freedom and extending a hand of friendship to Spain whilst retaining the unilateral right to decide on the issue of sovereignty.

I really do hope that Mr Picardo's prediction of a dirty campaign is not the tactic that the GSD will adopt. Gibraltar deserves better. Even if the GSD react as predicted, I would hope the GSLP will stick to what Mr Picardo has said "... policies and ideas" resorting only to a defence by them of any accusations made by the GSD. This is not to say that any provable issues of bad governance by the GSD should be buried. Bad governance is an issue of public interest and importance that politicians have a duty to voters to reveal and stop.

Also, any cynical policy or acts of the GSD Government, such as handing out goodies, at our expense as taxpayers, for their selfish electoral advantage just before an election, should be seen by voters as just that, cynical. Any government in power can do that.  It is not good governance. It does not benefit the commonweal of Gibraltar. Any such behaviour is not a reason to re-elect the same party, presently the GSD, into Government. The GSLP or any other party could play the same cynical game were they to be in or get into power. It is not a factor that should be weighed by voters as favouring an incumbent government, today the GSD. The question that needs to be asked is, if they can give away "goodies" just before an election, why have they deprived voters of the benefit of all those "goodies" during the rest of the time that the pertinent party, today the GSD, has been in government?

The GSD have to find political clear blue water between themselves and the GSLP. Based on the manner in which the GSD have governed and on the policies that they have in fact implemented (not the ones that they have preached and not given effect to) they have a difficult political task finding clear blue water that will convince the electorate that they should be returned to Government. Where did their promise of good relations with the UK go? Where did their promise of open and transparent  government go? Where did their promise of democratic reforms go? Where did their promise of no fear and no repercussions for expressing political views and preferences go?

Ask me, I am no longer a member of the Financial Services Commission, for expressing political views, and despite his denial on GBC, Mr Caruana did play his part in the circumstances that led to my resignation. I have confirmation that, prior to the consultation on participation in politics that led to my resignation, the Chief Minister wrote to the Financial Services Commission on that subject. I have requested but have been denied a copy of this letter, by the the Financial Services Commission (despite this Commission preaching open and transparent good governance for their licensees) and also by the Data Protection Commissioner (I wonder why, might it be because my request involves the Chief Minster?).

I am told by the independent  Data Protection Commissioner that Mr Caruana's letter exists but that he will not take steps to have it disclosed to me despite that it is "personal data". It refers to and concerns me in my capacity as a member of the Financial Services Commission. I have asked Mr Caruana in writing for a copy of the letter also. Two weeks on from my written request, I am still waiting to receive even an acknowledgment.

This letter must be critical of me, otherwise why the reticence to disclose it? Might it compromise the Chief Minister's statements that he made on GBC shortly after my resignation on the subject of "cousin Robert's" (me for those who do not know) right to freedom of speech and the independence of the Financial Services Commission? There again, surely that cannot be the reason, both the Financial Services Commission and the Data Protection Commissioner are independent of the Chief Minister and act independently. I wonder why they are all so shy of giving me a copy of the Chief Ministers letter?

I have voted GSD in every election since 1996. I cannot bring myself to vote GSD again. I wil be standing as an Independent candidate but I will have 9 other votes. I will use them in the manner that I am urging all voters to use their votes, namely, to vote for strong individual candidates irrespective of which party each such candidate is standing for. If you value democracy, if you want real change and you want to force consensus government in order to improve democracy in and for Gibraltar do not "block vote" for one party. Use each of your 10 votes wisely to pick and vote for the best and strongest candidates, whatever their individual party allegiances. Force real change by voting for good strong candidates and thus force them to work together for the best interests of Gibraltar.

My conclusion is that Fabian Picardo is another and long awaited catalyst for much needed political change in Gibraltar. He and his party's candidature, conjoined with that of the Liberals, will give the electorate added and good choices. The reality is that if the electorate does not flex its democratic muscle by voting for individuals, there is a real risk that no substantive electoral change or reform of Parliament will be enacted in the next term of Parliament. This is what has always happened in the past. We should learn this lesson from history. If these fundamental changes, to deliver greater democracy, are not forced on our politicians by voters splitting their vote and thus sending a message to our politicians, even if the GSLP are elected into Government in two terms of Parliament, Gibraltar politically and democratically is likely to be back where it is today, with presidential government by Chief Minister. That said, a change of government for two terms of Parliament, with the promise and hope of some reform, is a better option right now than no change at all.

Europe Minister's Visit Reveals GSD Government Differences with the UK?

The GSD, pre-1996, were highly critical of the GSLP claiming that the GSLP was alienating Gibraltar's good relations with the UK. Remember? Fast launches, tobacco smuggling, the 1st July law and more. Where are we now? Now, we have Peter Caruana on GBC saying words to the effect that he will not allow the UK to "clawback" gains obtained under the 2006 Constitution.

This statement reveals, which previously was not public, that tensions exist with the UK over the exercise of powers by the Government and Parliament of Gibraltar under the 2006 Constitution. Have we not been told by the GSD government that the referendum on the 2006 Constitution was an exercise of our right of self determination? What now? Have we not been told by the GSD government that the 2006 Constitution is the greatest level of self government that can be attained short of independence? Well, were these statements to be accurate, how could there possibly be any differences with the UK on what powers are capable of being exercised by Gibraltar's government and Parliament?

Additionally the statement of the Minister for Europe confirming the UK's well known and often repeated commitment to a British Gibraltar sits uncomfortably in contrast with his statements about the UK's relations with Spain. He considers that the UK wants a "... friendly, constructive relationship with the Government of Spain ...". That Spain is a "... big player within the European Union ....". That the UK and Spain "... share common ground on ... liberalisation of services, renewable energy, climate change ..." . Wait for it and "... we want to deepen our relationship with Spain whether its PSOE or Popular in office."

Can these dichotomies be reconciled? What can Gibraltar do about them? One thing is sure, these contradictory issues require careful analysis, thought and diplomatic handling. Gibraltar cannot afford to pursue a policy that alienates the UK either on any differences over the 2006 Constitution or by acting in a manner that undermines its relations with Spain or its commitment to strengthen these. Can Gibraltar walk this tightrope? Is there a tightrope at all to walk along? I believe that there is but arrogant and aggressive posturing is not the way forward. No one will go to war in defence of Gibraltar over these issues. The only loser, if a tightrope is not found and carefully and acrobatically negotiated by Gibraltar, is Gibraltar.

I believe that other than for the issue of the democratic deficit,  a phrase that this blog re-popularised in Gibraltar recently,  some other issues that will be important at the next election are the ones that I raise in this piece. I will give my views but these cannot be stated briefly. I am afraid that this exposition is going to be a long and slightly complicated. I will do my best to explain my views as briefly as making my explanation understandable permits.

On the 2006 Constitution, one can take an exclusively legalistic view, as Mr Caruana seems to do. I fully accept that such a view is the starting point but politics and diplomacy need to transcend legalisms where international relations are engaged, in this context relations between the UK and Gibraltar. To understand what I mean I have to briefly analyse what I consider to be the legal position under the 2006 Constitution that is relevant to this issue.

Gibraltar's Parliament  is a subsidiary legislature. Subsidiary to the Parliament in Westminster and to the exercise of prerogative powers by the British Crown. The importance of understanding this has several dimensions. One is that the delegated legislative power is circumscribed in the 2006 Constitution by the words " ... the Legislature may make laws for the peace, order and good government of Gibraltar". Although the words in bold give wide and extensive powers they are also words that delimit, in some small degree, the exercise of power by the legislature. This, in turn, delimits the power of the executive arm of government because it can only govern under laws made by Parliament.

There are further restrictions on the ability of Gibraltar's Parliament to legislate. Chapter 1 of the 2006 Constitution gives to citizens all the fundamental and human rights, with power to the Supreme Court of Gibraltar, therefore access to the whole appeal system up to the Privy Council in England, to enforce these rights.

What this Chapter 1 and the words " ... peace, order and good government ... " also do is to bring into play the Governor's responsibility and power to refuse to assent to legislation under section 33(2) on the grounds that it is "... in any way repugnant to or inconsistent with this Constitution" and "... repugnant to good government or incompatible with any international legal obligation." Fundamental and human rights fall fairly and squarely within both these provisions, they are part of the 2006 Constitution and also part of international legal obligations.

The reserved powers are a further restriction. The conduct of external affairs (in consultation with the Chief Minister as may be practicable), defence, internal security and certain appointments of public officers are exclusively the domain of the Governor. The Governor has power to legislate on these matters in the event that, following consultation with the Chief Minister, Parliament will not do so. This begs the question, is compliance with international legal obligations, including fundamental and human rights, an external affair?

Bearing these constitutional constraints in mind the statement by the Minister for Europe that " the implications of that new constitutional relationship are still being worked through ... it is important that the continuing role of the Governor in the Constitution is fully respected" can begin to be understood. What is worrying is that Mr Caruana should talk of "clawback" in circumstances that the UK's constitutional powers are constrained to repugnancy and inconsistency with the 2006 Constitution, issues of good governance and compliance with international legal obligations? What possibly could he or his government be considering legislating on that do not fall within these requirements? What is within the realms of considerations that should not be capable of political and diplomatic agreement with the Governor?

In the background to this analysis there is the UK's nuclear option. The one that, other than for me, no one seems to like to mention, rather like the skeleton in the cupboard. I refer again, of course, to the last clause in the schedule to the 2006 Constitution. It is the one that no politician that supported the adoption of the 2006 Constitution likes people to know about so I will quote it in full once again "There is retained to Her Majesty [let there be no doubt that this means the UK Government] full power to make laws for the peace, order and good government of Gibraltar (including ... laws amending and revoking this Constitution)"

Self determination? The greatest level of self government that can be attained short of independence? There again in the Despatch to the 2006 Constitution what the UK says is that it "... supports the right of self-determination of the people of Gibraltar ... except in so far as ... Article X of the Treaty of Utrecht gives Spain the right of refusal ... independence would only be an option for Gibraltar with Spain's consent".  So how about that, the word used is "supports"? Is the recording of Gibraltar"s non acceptance of this position relevant? Well I have expressed views about that in the past.

I believe that none of these constitutional issues should gives rise to confrontation with the UK. These matters are clearly capable of mature political or diplomatic resolution and understanding. The applicable principles under the 2006 Constitution are not only fair and reasonable but protective of democracy and the people. An essential requirement in a governmental system so devoid of checks and balances and democratic protections. I would suggest that the introduction of electoral and parliamentary reforms will also help overcome some concerns that may exist presently, as greater legislative control and review will be the beneficial result.

Confrontation on the 2006 Constitution is not helpful in resolving the second dichotomy. The issue of the UK's desire to have a strong relationship with Spain, whilst keeping its solemn undertaking to Gibraltar not to allow a change in the sovereignty status of Gibraltar without the freely and democratically expressed consent of the people.

One option to resolve this problem is to agree and negotiate an overall solution of Spain's problem with Gibraltar. The reality is that the people of Gibraltar and the aspirations of Spain are at such opposite poles that, in practice, this is no solution. That, however, is not reason enough for this possibility never to be considered. It is a possibility that needs to be dusted off on occasion and looked at. There may be a boat that needs to be caught at one stage that if Gibraltar misses it will be to its detriment. Geopolitical factors and military considerations involving Morocco and the present unrest in North Africa and Spain's role in that, bearing in mind the constraints on the UK's military spending and capability, may impact on this.

The reality is that right now there is no practical possibility that such a solution is attainable nor acceptable to us, as a people in Gibraltar. The reality is that there has to be an acceptance (albeit begrudging) by Spain that we, in Gibraltar, do not want a change in sovereignty. This was clearly expressed, most recently, in the 2002 Referendum following the joint sovereignty accord. The international relations between the UK and Spain are by far wider and of greater import than the issue of the sovereignty of Gibraltar. I believe that it is not an issue that Spain will use to negotiate its wider relationship with the UK. The broader interests of both countries and the benefits to each are such that the issue of Gibraltar will not break or weaken that cooperation, which is the opposite view to that expressed by Senator Caracao, which I do not believe is the correct analysis.

What cannot happen, however, is that relations deteriorate over Gibraltar. It is in this context that the trilateral process is important. It seems to me that this is the tightrope that Gibraltar has on offer. The unblocking  of the trilateral process is the departing joint message and objective of the Minister for Europe and the Chief Minister. The territorial waters issue is what has led to the present deadlock. If one sets aside the political objectives of Spain and also those of Gibraltar, by which I mean making practical arrangements without prejudice to those objectives, the aims of all parties must be identical, briefly they are territorial security, law and order. It cannot be beyond the wit of man to find a practical solution to guarantee those aims at a practical level. Practical solutions have been found to even more thorny issue, I refer for example to the air terminal and airport. Always bearing in mind that it is sovereignty that is sacrosanct.

Tightropes are not easy to walk along but falling off is far more painful. I think we need to inch forward with wisdom, humility and in a non-confrontational manner but always defending the fundamentals that are sacrosanct to us in Gibraltar, British sovereignty. Let us not engage in macho behaviour to our detriment. Certainly the GSD government should practice what it preaches: a policy of friendship with the UK, after all we want to remain British. They have given us a solemn oath enshrined in the 2006 Constitution, which they honourably maintain. Let us reciprocate with equanimous behaviour and cooperate by walking a path that is beneficial to both the UK and Gibraltar.

The Public Service Debate

I was going to write on the issues arising following the recent visit of the Minister for Europe but I have had too many requests to start a debate on the Civil Service "package".  I will write a short piece to start the debate but will do so seeking answers by stating opinion in an inquisitive spirit.

It seemed to me that the package as a whole is reasonable but there are obviously Union members who have issues and questions on which the Union owes them explanations and answers. That said, there has to be give and take in today's world and reasonable discussion and solutions within the Union and with Government as employer.

Modernising services and terms of service is essential. Public servants need to be well rewarded but today's economic circumstances in the world require that long term commitments are kept under control. The alternative is to bequeath to our children an unaffordable burden.

What I would question is the right of the Union of today to trade off benefits gained for their present members for sacrifice by future workers, which some feel is what may be happening. There is no simple solution to this conundrum. I believe that an element of altruism has to be brought into play so that present employees sacrifice something for the greater good of Gibraltar as a whole.

This brings me to the second issue consultation, openness and transparency. Employees cannot be asked to make sacrifice without full information and consultation by the Union that represents them. The message that seems to be filtering out is that there has not been enough consultation or time for members of the Union to study and consider the package. If that is the case bulldozing even a good package is anti-democratic. It is sad because if in substance the package is good but it is defeated for procedural failings by the Union then the net loser is Gibraltar and the Union, which represents its members.

A reminder of what is happening in government generally?

Age of Consent - Sense and Independence

The judiciary has done its independent duty admirably. To those who expressed doubts to me and others, I trust that now the absolute and resolute character of the judiciary, which I have personally not doubted, is put beyond doubt. The decision on the age of consent is proof, if any was ever needed, which I do not believe it was, that Gibraltar's legal and judicial system delivers judgments based on jurisprudence and independence and not prejudices or  partialities. The cynics (and there have been many even on this blog, although I have not been able to publish their comments for legal reasons) should now be well and truly silenced.

Proof of judicial independence and impartiality is not, however, the issue. This, for me , is stating the obvious. The whole case raises more fundamental questions in the political rather than the legal sphere that need some thought and debate. One political debate revolves around the government using the courts to overcome politically sensitive debate and controversy, when the European jurisprudence is clear on an issue. This question arises because the litigation was brought to Court by the executive arm of government in the guise of the Chief Minister and the Attorney General. This is a matter for concern of itself but more so because there is no separation of powers between the executive arm of government and the legislative arm of government.

The whole case is a perfect example of the failure of this aspect of our system of government. Legislating on controversial but necessary laws (not only for reasons of good governance but also because of the requirements to enact European Union and European Human Rights compliant laws) becomes not just a party political issue. They become personal moral and popularity issues because our laws are essentially diktats of any given  Chief Minister at any given moment in history. If there was a true separation of powers between the executive and the legislature an element of dilution would exist that would permit for better legislation generally and specifically on unpopular and controversial subjects. Legislation often should and does not have a party political element. It is necessary for the purposes of delivering good governance. The separation of powers helps to deliver an ability to legislate more objectively.

The "age of consent' issue is not yet over. Aspects of laws have been declared to be incompatible with the fundamental rights contained in Chapter 1 of the 2006 Constitution. The Chief Justice has rightly directed in his judgment that " ... until such time as the legislature amend the offending provisions no prosecutions which offend the declarations may be brought." The overall effect of this statement and the declarations made is that consensual sexual activity, whether vaginal or anal,  in private between consenting persons over the age of 16 has been decriminalised.

Decriminalising these acts does not amount to the law giving positive permission to encourage such behaviour. What the law is doing is drawing a reasonable line, bearing in mind competing interests, for example the protection of  minors measured against prevalent moral behaviour in society at large.  In so doing the law is avoiding the practical issue of enforcing the unenforceable and also the need to prosecute young persons and criminalise any for the rest of their lives for consensual behaviour in private. It is easy to argue the opposite intellectually and objectively on moral grounds but those who do should put themselves in the place of parents of young boys and girls who may have faced the awful prospect of public prosecution and imprisonment when what all involved wished for the continuation of a stable relationship between, for example, parents of a child born of a 15 year old mother, Yes they do succeed. I know.

The debate politically is now more difficult, do the politicians row back and reverse a position that now reigns by increasing the age of consent for the sake of gaining popularity from amongst the religious pressure groups? I would hope not. I fully appreciate and understand the stance adopted by religious groups. Taken to an extreme, based on their morality and perspective, the law should crimialise all sexual activity outside marriage. That is the rule of most if not every religion. The law does not do so. One reason for not doing so is because there has to be a distinction drawn between morality and the law.

Morality is the primary responsibility of parents and religions. The criminal law has a tendency to step in where moral issues affect or undermine society as a whole or parts of society and to regulate general good order. I am a strong advocate of good personal moral behaviour. I am also a sinner like all, as Jesus Christ was at great pains to point out. Let each individual and each parent and each religious minister take responsibility for moral behaviour, that is their respective individual duty. Let the law step in when it becomes necessary for good order and the benefit of society at large. Our politicians need to think long and hard about the wider issues and debate and not narrow their arguments to pure religion and moralistic considerations.

All in all a great day for the judicature, jurisprudence and the rule of law, that it would be was never doubted by me. The other side of the coin is that it is a sad day for government and legislature and so democracy. Governments and legislatures have a duty to act maturely especially to avoid discrimination and unfair treatment of minorities (including heterosexual couples who enjoy anal sex) and when faced with unpopular decisions. The age of consent debate at a political level has now been usurped by a decision of a court of law, because to now increase the "age of consent" is to criminalise an act that, today, is not susceptible to prosecution.

Recourse to a judicial decision under the fundamental rights contained in chapter 1 of the 2006 Constitution should only have been necessary if someone's rights had been transgressed. It should  not have been used by the Government, which it has, as a substitute for political decision and a shield to hide from political responsibility and duty on an issue of law on which European jurisprudence is so clear.

Electoral Reform - Another Core Principle Explained

Gibraltar suffers a democratic deficit in part because no MP directly represents constituents in Parliament. MPs are elected by the entirety of the electorate and become either Ministers or sit on the Opposition benches. There is no individual MP that constituents can call their particular representative to help them fight political battles. Presently, the system works haphazardly; constituents simply have to resort to seeking help from an MP who either they know or is a friend of a friend. The immediacy and responsibility of direct representation is lost.

The particular issue of direct representation will be resolved by increasing the size of Parliament from 17 to 25 MPs by creating 8 electoral districts. The constituents of each individual district will elect an MP to represent them by a simple majority on a first past the post basis.  Finding candidates for this type of district election will be an easier task. It will also encourage more independents to stand.

MPs elected to represent a district will be obliged to hold a minimum once weekly district clinic for at least 3 hours in the evening. The purpose of such a clinic will be to listen to and assist on any issues affecting his/her district or constituents in his/her district

The entire electorate of Gibraltar using a single transferable vote system or other proportional representation system, as may be chosen on advice from the Electoral Reform Society, will elect the balance of 17 MPs that make up the total of 25. Only these 17 MPs will be eligible to be Ministers and form part of the executive arm of government.

All MPs, however elected will enjoy equal standing, have an equal vote in and benefit from all the privileges of Parliament. The party or grouping having the support of the greatest number of MPs will form government and choose its Ministers from those who are eligible.

The proposal is to enact all necessary legislation to redress this aspect of the democratic deficit by electoral reforms in as good a time as circumstances and support in Parliament permits. 

Corruption, What is it?

Corruption is a word that is bandied about frequently. Often it conjures up pictures of brown envelopes passing from hand to hand or secret bank accounts in foreign countries being swelled with money. This is is certainly corruption but it is worth spending a little time analysing what additionally constitutes corruption. Corruption is a massive subject but briefly, what is encompassed by the the word "corruption"? Commonly it is felt that, electoral fraud, nepotism, bribery, cronyism and slush funds are all elements of corruption.

Electoral fraud covers from the obvious, like intimidation and buying votes to the less obvious like misinformation. Intimidation in its crudest form includes direct threats and violence but it also includes, for example instilling or allowing a belief that one has to vote in a particular way to persist. In Gibraltar the lack of simple explanation of our voting system is an issue. I have personally come across an sizable number of people who believe that they are obliged to block vote for the whole candidature of a party. It is the responsibility and duty of the administration to ensure a simple explanation that communicates to all voters that they each have 10 votes that they can use to vote for those individual candidates who they choose to vote for, irrespective of party membership. Misinformation is far more insidious. It includes misleading information about candidates and parties and their policies and at an extreme smear campaigns.

Nepotism, or the granting of favours or positions to family and friends regardless of merit, is a difficult issue in Gibraltar because of its size and the inevitability of webs of connections and family. It is precisely because of the inevitability of accusations of nepotism in Gibraltar that there is a a more crucial and unique need to have objective safeguards. The importance of transparency and accountability comes to the fore in precisely this area as does a robust and all encompassing tendering system. A tendering system that must operate fast and efficiently so as not to allow any excuse for contracts to be directly allocated by reason of a requirement of urgency.

Bribery, an often used expression but is its extent fully understood? Blacks Law Dictionary defines it as the offering, giving, receiving or soliciting of any item of value to influence the actions of an official or other person in charge of a public or legal duty. In practice it is difficult to distinguish between the act and the intent of influencing, so often the act leads to an inference that there has been influence. Therefore, the act is best avoided by those in public office. The act can include not just money and physical goods but advantages and can encompass generous entertainment, like foreign travel and free accommodation, food and entertainment. A robust system of declaring all hospitality is one safeguard. The one preferred in the US is that no hospitality whatsoever can be accepted by an elected representative, minister, public officer or servant.

Cronyism is being partial to long standing friends usually it is practiced by ignoring aptitude or qualification and so merit, to appoint them to positions of influence and/or authority. Cronyism results in the person appointed becoming or being an extension of the appointer as the person appointed will  not try and undermine the appointer or even contradict him or her. Cronyism undermines the intellectual integrity of an administration aside from its obvious inherent dishonesty. It also leads to what is known in Spain as :"traffico de influencia". It is avoided by strict public, open and transparent appointments and tendering procedures.

Slush funds do not require much explanation. essentially a slush fund is an auxiliary or reserve fund that is usually used for subversive purposes or to buy favours. In government they arise absent strict open and transparent accountability and audit. More poignant are those in commerce that are hidden to buy favours from public servants.

The Anti-Corruption Authority that I have proposed is necessary but the ultimate deterrent  to corruption, however, is the separation of powers. An independent judiciary thankfully we have.  However in the area of government that is most susceptible to corruption, the legislature (Parliament) and the executive government (the Ministers) we do not have a separation of powers that is sufficiently robust.  This is one of the aspects that I have referred to as the "democratic deficit" a phrase that has now been adopted in the wider media. The other aspects, which in turn helps to deliver this separation,  is electoral reform. Most mainstream parties in Gibraltar have promised both and not delivered. I constantly ask myself why? Could the reason be that I am just innocent?