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.