Sunday, 31 July 2011

Give us Parliamentary Reforms: Not Political Machismo

The GSD Government has published the text of a Motion dealing with parliamentary reforms, which is soon to be debated in Parliament. It is 16 years late, as far as the GSD are concerned but 24 years late for the GSLP. The GSLP was in power prior to the GSD for 8 years up till 1996 and thereafter for 16 years in Opposition. It has not made any suggestions on this subject throughout this time. At least reforms are now on the parliamentary calendar. The Motion goes far but not far enough.

Not far enough because it does not include electoral reforms; without electoral reform the fundamental ingredients and make up of Parliament do not change. This omission undermines and grossly weakens the effect of the proposed reforms. Electoral reform, such as would better allow  for independents and for more diversity in Parliament, are essential, if the reforms are to have the makings of revolutionising politics in Gibraltar. Appropriate electoral reforms would make membership of Parliament more inclusive and politics less divisive.

Without going into the details of the proposals contained in the GSD Government motion, parliamentary and electoral reforms are presently one of the most important items on the political agenda. They are as important as constitutional reform was in 2006. Gibraltar had one bite at constitutional reform. The reform of the Constitution fell short of what should have been achieved. I do not mean on the self determination front. I refer to the subject of electoral and parliamentary reform, which was left to Parliament, hence where we are today. We are now being given a first opportunity to gain from parliamentary reforms. It is important to get the reforms right, because, although it is within the power of our Parliament to revisit reforms of this nature, once they have been debated and enacted, politicians are unlikely to revisit them for a long while afterwards.

Let us, the electorate push for as much as we deserve. As many as possible should join in the public consultation that will commence, if the motion is passed. The fear, however, is that what is being played out by the GSD and the GSLP/Libs is a typically high-level political ping pong game. A game that is intended to create an illusion of a sincere quest for reform but will result, once again, in cheap party political points being scored by both Government and Opposition to the detriment of democracy. Active participation in the consultation process will exemplify the interest that there is in this issue. Complacency and apathy will play into the hands of politicians.

Undoubtedly the GSLP/Libs are right to complain and have complained that the GSD have dropped its proposals for reforms on them very belatedly. That the intention was to have had these debated in and formulated by a Select Committee that has not met in 2 years. That the GSD Government now, at the last minute, before the forthcoming election, wants to change the goal posts and debate the reforms in a Committee of the whole of Parliament. That it is belatedly in a big rush to reform Parliament before the forthcoming election. That the next Parliament should not be bound by reforms passed by the GSD Government at such a late stage in the current Parliament.

This last criticism is shorthand for saying that, if the GSD Government has governed without the proposed checks and balances, why change now, when the GSLP/Libs believe it has a good chance of forming the next government. If there are reforms now, a GSLP/Libs Government will have imposed upon it restrictions not suffered by the GSD. Thus it will not have the same freedom that the GSD have enjoyed whilst in government. The use of this argument is to miss the point. Politicians are the servants of the people, so, within certain limits to allow for the necessity to govern, checks and balances are a right that voters in a democracy should enjoy. It is not a debate about how politicans can retain power relative to each other. The measure is an objective measure of what delivers greater democracy whilst ensuring that there is a Government that can function.

Fabian Picardo may be right when he says to the CM:

As you will be aware, I have said that I believe the issue relates to the style of Government adopted by you and relates in particular to what is at least the perception that citizens and organisations are not free to associate with members of political parties other than the GSD and that this affects political freedom.

But ... so what? This is not any reason not to undertake the reform of the electoral and parliamentary systems. The GSLP/Libs have publicly stated that Parliament needs to be reformed. Further that it needs to be opened up to ensure the quality of democracy and to make Parliament more accountable. The PDP, to its credit, was saying these things sometime ago. The GSD, as the governing party, has had the duty, responsibility and power to do something about reforming Parliament for 16 years. It promised that it would in its manifesto. It has been making pronouncements without action for years; now, finally, the GSD Government has nailed its flag to the mast. It is time to take advantage of this and of cross-party consensus for the benefit of people and democracy. It is time to put aside the selfish aspirations of politicians and their self-centred desire to retain power and an easy life to the detriment of democracy.

The reality is that voters, who have the ultimate say in a democracy at an election, have been clamouring for reforms for years. It has been a subject of discussion at bars, clubs and reunions for a long time. Politicians have paid lip service to the desire and requests of people for democratic reforms. Promises have abounded from all politicians, even the GSD, but with no action ensuing. It seems that politicians consider reforms to be an intrusion into their cosy and exclusive club of 17 elected MPs. They have avoided reforms like the plague as a consequence.

These elected politicians argue, scream and shout at and, occasionally, insult each other in Parliament (as and when the CM decides he needs a meeting). Rarely do the public (including me) hear much of what goes on in Parliament or bother to understand what is being discussed or are interested in doing so. On the whole Parliament is an irrelevance to most. This is wrong. It needs to be changed if democracy is to evolve and develop positively. Debate in Parliament has become just a game played in isolation by those few politician who sincerely believe in politics and people, rather than their own self importance, and the majority of politicians, who are in it for a variety of non-altruistic reasons. The young should be aspiring to participate in politics and join the race for a seat in Parliament. There is no such sufficiently widespread enthusiasm. This interest needs to be engendered but will not be whilst exclusion is present, due partly to the system and partly to unstructured and undemocratically run parties remaining in power.

We are in danger of the same happening all over again if the GSLP/Libs decides, as it seems it has, to dance to a tune being conducted by Peter Caruana. The tune seems to be, get the GSLP/Libs to object to reforms, the GSD Government will be seen to have tried and so done right but will have succeeded in not reforming the system. This failure suits all politicians fine and has the advantage for the GSD that it will leave the GSLP/Libs with political egg on its face.

The GSLP/Libs may be right in everything it says, as explained above, but this is not what this issue is about. The issue is more substantial than inter party rivalry and bitching. It is about people and democracy. The time has come for the GSLP/Libs to stand up and be counted. It is time for it to tell the electorate what its vision is on parliamentary and electoral reform. It must make an effort to win votes on this issue by showing its democratic credentials; it needs to use this debate to recover some of the votes lost when, pre-1996, it formed the administration. At that time it was seen, as a Government, to be too detached from voters and to be out of control.

The GSLP/Libs should feel free to make its points about how the GSD and the CM have behaved and failed on parliamentary reforms for 16 years (remembering that it also did nothing as an Opposition during this period to promote reforms and effected none between 1988 and 1996). It should not criticise, however,  to the exclusion of making and vocalising the substantive arguments. Some of the substantive arguments are, what reforms do the GSLP/Libs propose? Does it feel that what the GSD proposals are good or good enough? If not, it should state the reasons why not. Does it feel that the GSD reforms go far enough? I think not, certainly not on electoral reforms. What do the GSLP/Libs think? If it thinks not, in what areas are they deficient?

The GSLP/libs should state its case and policies on this issue clearly. It has said already that it supports electoral and parliamentary reforms. It can have no good reason for not telling the electorate what these should be. If the GSD implement any GSLP/Libs suggestions, so be it. It will be a success for the GSLP/Libs, not a failure. The GSLP/Libs should not portray failure, where there should be none. It should not engage, once again, in a game of political machismo about procedure to the exclusion of substance.

The GSLP/Libs will not win the forthcoming or any election simply because of the unpopularity of the CM, as perceived by it and many of its supporters. He is very popular with many. Elections do not work like that. Incumbent governments may lose elections but for a government to lose the election, people who are not in power must positively win the election. Opposition parties have to grab the initiative on policies to be seen as a government in waitng. The GSLP/Libs need to grow up and play real politics on substantive and not procedural issues. It should not continue partaking in playground politics. The voters do not care about petty squabbles amongst politicians. If what it is about is petty squabbles, then show the GSD up for taking politics to that place. Do not be pushed by the GSD into being seen as the persons acting in a petty fashion. The GSLP/Libs participates in and carries on these squabbles at its own peril.

The GSD would love to be able to blame the GSLP/Libs for obstructing and preventing the GSD from reforming Parliament. It could even be part of the GSD's game play. The GSD seems to strategise and play thesegame beautifully to the detriment of opposing politicians. The GSLP/Libs do democracy no favours by playing at politics the way it does. In Gibraltar's current parliamentary system, which lacks checks and balances, a strong and credible Opposition, which exudes the probability of it succeeding at every next election, is presently the primary safeguard in the democratic process.

The GSLP/Libs owe it to democracy to join the fray fully and positively and aim to win and be seen, convincingly, to be aiming to win. The PDP, who have the least chance of success, do it, why doesn't the GSLP/Libs? It is the party in waiting to form Government. There it will remain, waiting on the Opposition benches forever, if it does not improve its image and take up the initiative. Gibraltar and its democratic institutions and systems, albeit deficient, deserve better from the GSLP/Libs, precisely because of the system's inbuilt deficiencies.

Wednesday, 27 July 2011

Buses and Alternative Public Transport

Energy and transport policies are kingpins of government and politics, in addition to foreign affairs, law and order, the economy, taxation, sport and culture. In Gibraltar energy policy boils down to the production of electricity and its cost. That is a debate for another day, especially the lack of a new power station and the cost of electricity.

What about transport? Putting the cable car to one side, the only means of transport in Gibraltar is its roads. This alone limits us to using our legs to walk or run with or with which to cycle, private means of transport i.e. cars or motorbikes or using the public bus service or taxis. Are these really the only affordable options? I believe there is another cheap and innovative means of transport that could be introduced but first a look at the raging debate about buses is of interest.

Recent events concerning the bus service have resulted in argument on two fronts; whether the experiment to run a "free" service is working is one, the effectiveness of the new bus routes is another. It seems there is much discontent on the subject of the new bus routes. I do not know enough about bus routes to comment on that debate. My view, however, is that the bus company should look at this issue again carefully, hear the complaints being aired and act to put right any criticims made by the public that are found to validly indicates that any aspect has gone wrong.

Public comment also indicates that the idea of having a "free" bus service has not worked well. We hear that tour operators are taking advantage of this service to provide tours for tourists free of charge. The result is that normal bus users are unable to take their daily and usual journeys. This, in turn, defeats much of the purpose of having a "free" service, which is to discourage the use of private transport by encouraging the use of public transport.

The idea to have "free" buses could be good but only if it can be made to work. I do not believe that simply having a free bus service will significantly reduce traffic. A "free" service will only be effective if at the same time the use of private means of transport is discouraged. It can be discouraged by congestion charges or by increasing the overall cost of parking in public spaces. It is unlikely that either of these options will be introduced due to the popularity of cars in Gibraltar and the consequent electoral unpopularity that will attach to any political party that introduces such charges.

If one accepts that  unpopular charges for the use of cars will not be introduced then one has to look at alternatives. One should look at a system that incentivises the use by residents of Gibraltar but does not do so for non-residents. How can this be achieved? Simple really, charge everyone to use the buses but have a system that reduces the cost to all without discrimination but in a manner that in practice only makes it cheaper for residents.

This system is called competiticvely priced non-transferable "season tickets" with photographic identification on its face. In this way locals can buy cheaper prepaid tickets for defined periods of time. Additionally, this system has the advantage that it will provide to the bus company income from both the sale of season tickets and sale of tickets per journey to visitors, which will ease the burden on the public purse without undermining the wish to encourage the usage of bus transportation. If this system is introduced the privileges for resident over 60s to travel should be reintroduced.

Turning to a cheap alternative means of transport, my solution is free robust public lifts as used e.g. in the London Underground. You may laugh but this is a form of transport used elsewhere e.g. in Monaco. The first step is to construct public lifts in stand alone towers at various points along the front of the fortifications that run along the Line Wall fortifications. This will mean that all buses can be re-routed out of the central town, thus helping, also, to decongest traffic in the  central town  area.

My second suggestion is to include public lifts in strategic buildings to facilitate acess to anf from the upper town e.g. in the proposed new multistory car park to be built in Engineer Lane. These public lifts could give access from certain parts of the upper town to Main Street  and surrounding area. It may also be possible to construct such lifts at various other strategic spots to connect the upper with the lower town but I will leave that to the technical people to determine viability.

The simple effect of this idea is to create access on the east/west axis of Gibraltar and from higher parts of the rock to lower parts and vice versa as opposed to the existing predominant requirement to gain access everywhere on the north/south axis. It may sound crazy but, simple ideas, like this one, are the ones that often work best. I leave it to technical people to tell me why it will not work. after all I am just a lawyer.

Sunday, 24 July 2011

Is Gibraltar more Susceptible to Political Corruption?

One of the effects of the ongoing Murdoch saga is that it has shone a searchlight on the interrelationship between the press, politicians and the police. It is interesting to note that two senior police officers have resigned; one reason for both resignations is that each accepted hospitality from senior Murdoch executives. Despite their resignation neither believe that they have done wrong. Each also pointed the finger at politicians, saying that the Prime Minister had employed the ex-editor of News of the World, and both had also entertained senior Murdoch executives. This and all the Murdoch saga has got me thinking of what is acceptable behaviour and what is not, which led me to think generally about the issue of political corruption.

In the absence of action by the relevant authorities, my conclusion  is that it is voters at an election who make the ultimate judgment of what is or is not acceptable. Much of the establishment is often too engaged in the process to see clearly, or it is frozen, by circumstances and connections, into inaction. It is voters, at an election, who can make a value judgment, thereby deciding whether any particular behaviour is acceptable or not. That decision, in turn, is a measure of the morals and values of the society in question. Voters can only act, if there is an understanding of what corruption is. They also need to be possessed of relevant information upon which they can make a judgment. First that information has to find its way into the public domain.

It is interesting to note that corruption can fester in a society that lacks information, as this lack creates a fertile environment for it. In the News of the World saga it was the breaking of the story about payments to the police in return for for private information, specifically information about the investigation into the murder of Milly Dowler, that created the public backlash that has led to the ongoing repercussions. It was only this extreme (and extremely disagreeable) case that caught the imagination and enraged public opinion sufficiently to cause the resultant scandal. Previously, whilst it only affected famous individuals, the scandal bumbled along. It is important to take heed because this incident shows that, without constant trasparency, complacency creeps in. It then takes an extreme set of circumstance to result in any remedial action.

Facilitation of information reaching the public  is where the law can play a part. The law should clearly define what political corruption is; expressed in its simplest terms it is "... the use of legislative powers by government officials for illegitimate private gain". Laws should provide the wherewithal by which information can find its way into the public domain. There must also be a free and investigative press (sorely missing in Gibraltar) prepared to uncover and report information on which the public can base its views. Appropriate laws exist in the UK, as will be explained below. One aspect that went wrong in the UK (but is now being addressed) was the involvement of the press in the acts that have now led to arrests on suspicion of criminal behaviour. The other, which is connected to  the regulation of press behaviour,  is the involvement of the police itself in receiving payments from the press.

Gibraltar is well behind on laws to open up information, so the issue is not that information does not reach the public because of failures in the system, the issue is that the conduits by which information may be made public have never been sufficiently opened. This takes the argument all the way back to our politicians. They probably have no interest whatsoever in passing legislation that opens up and makes the system more transparent, despite their public policy acclamations and commitments to the contrary. Acts speak louder than words; on this subject there have been many words from our politicians but no activity.

There are various laws that help to protect against corruption by allowing information to find its way into the public domain. One of the first was a law relating to the declaration of interests of and by MPs. This were introduced in the UK following the Poulson scandal in the very late 1960's and early '70s. Thankfully, Gibraltar has this requirement for MPs. To what extent it is actively investigated is an open question. One law that Gibraltar does not have (but exists in the UK) is the Public Interest Disclosure Act 1998, or as it is colloquially known the "Whistle Blowers Act". This law protects persons who alert the authorities to corrupt and other undesirable practices. The UK also has a Freedom of Information Act. This law requires the Government to publish information on request, subject to a few exceptions, and not to work behind a cloak of secrecy. Finally (and very recently) the UK has enacted a Bribery Act, which replaces, consolidates, clarifies and modernises previous common law and statutory offences.

Why is Gibraltar so far behind? Do politicians have anything to hide? Or are they just scared of what might result? Possibly, but another reason is a lack of independent non-party thought and lobbying within Parliament. All MPs on the government benches are Ministers and so form the Executive of Government. If there is a change in Government that will not alter: the other party simply takes over.

One force that could change this is lobbying from outside Parliament. External pressure, if a press campaign is absent, suffers from, at least, two disadvantages. The issue is not a burning issue that enthuses citizens, so an active civic society on this subject is lacking. Accordingly, no lobbying organisation exists to push such laws onto the statute book. Secondly, the choice of candidates is limited to two main and one minor party, so if something is not in the interests of any of them, nothing will happen, save that the right noises will be heard but laws will never be enacted. If the public do suspect corruption the tendency is to change the party in Government and the merry go round continues its everlasting circle. This roundabout is assisted by a generally weak and overly politically controlled civil service. Also by a law enforcement culture that is not prepared to investigate and, if any adverse fact come to the fore, to prosecute.

These factors (and more) are especially prevalent in a small society, where an "old boys network" and close family relationships are an inevitability. It is precisely in such a jurisdiction, which Gibraltar is, that systemic, objective and  independent anti-corruption measures should be introduced. These need to be very robust. It is precisely this that what was done in Hong Kong in the mid-1970's by the introduction of an Independent Commission Against Corruption, which I have written about in the past.

Corruption exists everywhere in the world. Laws simply reduce the opportunity for it. Then, only if they are properly policed and enforced. For example, the UK has preventive laws, yet it finds itself embroiled in a corruption scandal. This is no argument against having the legal infrastructure in place to prevent corruption. It is a strong argument to show that Gibraltar  is even more susceptible to corruption than the UK, especially in light of the overconcentration of unchecked powers in very few individuals. Also citizens are entitled to have laws that protect against corruption. These laws should also defend the use of their money, prevent abuse and improve the proper exercise of fiduciary decisions on their behalf. A further argument is that whilst Gibraltar may consider itself to be an onshore financial centre now, at large, it is still viewed as a tax haven. Tax havens have the reputation for being used frequently to hide the proceeds of corrupt practices in other parts of the world. This is a further reason for ensuring that we have the right anti-corruption laws in place. It is another issue of perception that needs to be dealt with.

There is a fine line between what is political corruption and what is acceptable behaviour by politicians and public officials. The fine line is sometimes difficult to delineate. For example, is paying for a politician's or public official's expensive holiday in an exotic holiday destination with everything paid corruption? Well, it certainly has the makings of being corruption because, aside from other considerations, the politician or official has received a "gain".  It was paid holidays that was the initial metodology that ended up in the Poulson affair. It is not a question simply of cash in brown envelopes.

In order  to establish whether any particular set of facts are corrupt practices one has to determine the intention of or benefit to the "host", who is paying for that holiday or other "gain". Intention is difficult to prove and benefit is often difficult to determine. One can only look at the surrounding circumstance to elicit what the intention and/or benefit might be. So one would look at, for example:
  • what dependence the "host" might have on Government for his/her livelihood or business or economic success. It may just be licensing or it might be a requirement for legislative change or the exercise of a discretion by a Minister or public officer; 
  • It may be that the "host" has direct or indirect interests in contracts with Government; 
  • it could depend on whether the MP or public official has or has not made a  declaration of interest and if one has been made, what follow up there is; 
  • the frequency of hospitality would be relevant; as would 
  • the extent and level of generosity deployed. 
The moral of the story is that once hospitality is offered to and accepted by politicians and/or public officials all are walking a dangerous tightrope. I recall, in a lecture that I attended in the early 1970's given by T. Dan Smith (who was a player in the Poulson scandal), that he said words to the effect that the fall from this tightrope is so insidious as to creep up unnoticeably and surreptitiously. Excessive and out of the ordinary hospitality is best avoided by politicians and public officials.

It is especially incumbent upon anyone filling the office of Chief Minister to avoid this type of hospitality. The reason being that there is an overconcentration of power in that office , without there being any, or sufficient, independent checks and balances to oversee or curtail the exercise of that power. This is a significant distinction from the UK Premiership, in which there is not such a great concentration of power and which is also subject to greater scrutiny and independent systems and differing decision makers.

Did you know that certain public federal officials of the USA are obliged to avoid any possibility of accusations of corruption, by restrictions imposed on them by law and regulations? They are required to take it to the extreme that, if they share a meal in a restaurant with anyone on matters connected to their employment, even fellow employees or independent advisors, they each have to pay for exactly what they have consumed on separate bills.

It is the constitutional duty of Parliament to make laws for the "... peace, order and good government ..." of Gibraltar. It is impossible to argue that a whistleblowers law, a freedom of information law and a bribery act do not fall fully within this obligation of Parliament. If the Government does not do it, why have successive Oppositions not promoted these in Parliament? Oppositions will argue that it is the responsibility of the Government. This is not exclusively so, it is the responsibility of all MPs.  It would show the Government up if it promoted beneficial laws to reduce the chances of corrupt practices. At the same time doing so would enhance the electoral chances of any Opposition party. So why have Oppositions historically not done it? Could it be that it may be in the interest of successive Oppositions to allow the existing situation to continue, in case it gets into Government? I trust readers will forgive me for my cynicism.

In the final analysis the  responsibility for oversight of good governance in Gibraltar lies with the Governor. Perhaps the institution that is described as the  "Governor" in the 2006 Constitution will take up the issue with the Government. Legislating for open and transparent government to diminish the opportunity for corruption to exist would be another step in advancing democracy. If any of our Governments or Parliamentarians behave like children, then colonial practices are the only solution. It would, hopefully, avoid the nuclear option if abuse becomes excessive: direct rule. It is what was not avoided in the Turks & Caicos Islands.

Friday, 22 July 2011

An Alternative Police Force?

The Government has published a Bill headed the Borders & Coastguard Agency Act 2011 ("Bill") to establish a Borders and Coastguard Agency ("Agency"). I will refrain from repeating the air force and navy analogy and stick to a constitutional analysis of that Bill and its intentions. They are interesting and may help in understanding the "UK Spokesman's" reply to a question posed by the Editor of Panorama to the F&CO and the Governor to which the reply came in the following terms;

"This is a positive initiative, which in conjunction with and co-ordinated operationally with other agencies has the potential to enhance management of a range of issues, including environmental, security and border control in Gibraltar."

The words that I have written in bold are the ones that interest me most but before dealing with those specifically a short reminder of what are the areas of responsibility that fall to Governor under the 2006 Constitution is helpful, as well as a brief review of the Bill.

Under the 2006 Constitution external affairs, defence and internal security including the police (subject to the oversight of the Police Authority) fall within the remit of the Governor. The Governor also has legislative powers to enable him to give effect to his remit under the 2006 Constitution, after first seeking that the Government does so, and subject to the approval of the Secretary of State for Foreign and Commonwealth Affairs. The existence of the Police Authority, especially in the exercise of its function of  appointing the Commissioner of Police, is important in that it is this Authority that protects the independence of the Police from the Executive arm of government. This safeguard is very desirable in a democracy.

The proposed organisational aspects of the Agency under the Bill are:
  • the Chairman is the Chief Minister ("CM") or another Minister appointed by the CM.
  • a Chief Executive Officer ("CEO") appointed by the Government who is a member of the board.
  • such other unspecified number of members of the board as the CM or other Minister may appoint, although to achieve a quorum at least 2 will need to be appointed.
  • removal of members of the board, including by reason of being unable or unfit for office, is given to the CM or other Minister.
  • meetings are held once every 6 months or otherwise more frequently at the behest of the Chairman.
The issue that this immediately raises is that the CM or his appointee Minister controls appointments and removals from the board. So, where does the safeguard of independence provided in relation to the Police by the Police Authority disappear to in relation to the Agency? The Agency is also required to act in accordance with government policy and the directions of government. Again, where does this leave independence from the Executive arm of government?

The importance of a requirement of institutionalised and systemic safeguards of the independence of the Agency, in the same ilk as that of the Police, is palpable on an analysis of its functions. These are not far removed from that of some of the functions of the Police, albeit limited to the fields of immigration and coastguard. The following functions are noteworthy in this context:
  • immigration control.
  • monitoring, investigating and enforcing immigration laws.
  • undertaking security checks, functions and controls at air and sea ports/terminals and other places as decided by the government (surprisingly no mention of the land frontier).
  • undertaking vehicular and pedestrian circulation controls.
  • undertaking maritime search and rescue.
  • undertaking maritime and seaborne incident and events, including accident and pollution, response.
  • patrolling British Gibraltar Territorial Waters and its maritime and territorial borders.
  • monitoring and enforcing compliance with marine and coastal environmental laws.
  • monitoring and enforcing  compliance with maritime safety and shipping laws, port rules, marine leisure rules, bunkering laws and rules.
  • related matters as directed by government.
  • advise government and assist to implement government policy on related matters.
My concern on the issue of independence is further heightened by the power given under the Bill to the Government to make wide ranging regulations. This means that citizens even lose the protection of a parliamentary debate, despite the limited protection that this gives under the present legislative system. The Bill empowers the government to make regulations "... howsoever relating to any powers, functions and duties of the Agency ..."

Additionally this power mean that the Governor will not have the right to assent to any such regulations. This also denudes citizens of the protection relating to good governance (as required by the 2006 Constitution) that the Governor's assent provides. I say this, despite the howls of protests that it will elicit from many that this statement is purely colonial. Like it or not this colonial, call it, protection or power of interference is embodied in the 2006 Constitution. The power to make regulations, as presently enshrined in the Bill, is so wide that the rights and powers that could be given to the Agency and its employees by the Government may be as extensive as those possessed by the police but without any safeguards or independence from the political government.

More importantly the effect of the Bill, if it becomes law, as presently drafted, is to transfer to the CM, or the appointed Minister or the Government, constitutional responsibilities presently vested in the Governor, as outlined above. Especially those that relate to internal security, if no others, like international affairs. Will the Governor be prepared to relinquish these in favour of the Government by allowing such wide ranging legislation that delegates so much power, including the power to pass regulations, to the CM, other Minister and the Government? Is this actually constitutional advance by the back door? Well it depends, doesn't it, on whether the Governor will assent to the Bill to make it law in its current form. If he does, how will the inter-agency coordination that the UK spokesman has spoken of be guaranteed? How will he ensure that the "potential" that the same spokesman has mentioned is achieved? How will he retain control over "security" that the same spokesman has referred to? How will the regulations, to be made by Government, which could be extremely wide ranging and give wide powers to the agency and its employees, be monitored? Who will ensure the independence from the Executive of and the independent application of laws and use of powers by the Agency? There are no institutional safeguards  included in the Bill on this important aspect.

The proposals, contained in the Bill, raise many questions, which are worrying. Such extensive powers as are given in the Bill to the CM or an appointed Minister and the Government, in the wrong hands and without  safeguards and checks and balances, pose a danger and a threat to democracy. Hopefully the Bill will be carefully considered and debated before it is enacted as law in Parliament and, also, before the Governor assents to the Bill as presently drafted. I believe the Bill requires much thought and amendment before it becomes law, let us hope that such thought and debate happens and that it is not just swept into law by the CM's use of his majority in Parliament to the detriment of democratic safeguards.

Sunday, 17 July 2011

Public Borrowings ... Have Legal Limits been Exceeded?

We have the CM accusing the Leader of the Opposition of ignorance and deceit, economic illiteracy, misleading and scare mongering, of having no moral compass and of a systemic lack of sincerity. Never have I witnessed, as I have already written about, such a vitriolic attempt at character assassination.

The consequence has been that Mr Bossano has accused the CM of lying to Parliament. This is one of the most serious accusations that can be made of an MP. If right, resignation should follow, not that it will. The CM has now come back at Mr Bossano saying that the CM has not lied and that he condemns both Mr Picardo and Mr Bossano. The GSD Government then play politics in an attempt to gain sympathy votes by addressing words of reassurance to debenture holders, not that anyone has seen a single one of them panicking.

What a spectacle! or como se dice ... que bonito! What the heck will they be leaving for the election? I pray and hope that political argument will return to the land of sanity, sense and proper argument but, somehow, I doubt it.

All this over the budget and most specifically to do with the level of debt. Some of the debate centres on the issue of what the government is legally permitted to borrow. It is easy to forget that. It is not so easy to understand the pertinent law, the Public Finance (Borrowing Powers) Act 2008 ("Act"), specifically section 3. On the CM's interpretation the amount of net debt falls within the legal limits, on another interpretation it does not. I will expand on this argument but forgive me for being legalistic and technical. I consider that it is important to debate the interpretation of the permissive section. My analysis may well exacerbate the controversy but so be it.

The essence of section 3 of the Act, which sets the borrowing limit, is that government's net borrowing first cannot exceed "... the higher of £200,000 or the lower of ...."two figures alternative figures calculated by reference to two formulae. The first is 40% of GDP. The second is 80% of Consolidated Fund Recurrent Annual Revenue ("CFRAR"). There is then another overall cap which forbids the Annual Debt Service Ratio ("ADSR") of the gross public debt to exceed 8%. I do not know whether any of GDP, CFRAR or ADSR are independently assessed or the formulae are all applied using figures arrived at by the government itself. If the latter there can be an element of perfectly justifiable (but self serving) inclusion or exclusion of figures to arrive at an opportune final sum.

The CM's interpretation is that the Act permits the government to borrow more than £200,0000,000. The CM's interpretation is based on the first overriding of the two limbs being interpreted as meaning that the government can borrow the higher of £200,000,0000 or a figure that is higher, if the lower of two subsidiary formula delivers, as it does, a higher amount. This remains so only if the second overriding restriction (not exceeding 8% of CFRAR) is not surpassed. On the figures provided by the CM, which there are no reasons to disbelieve, we are well within these permitted limits. I agree that this is a perfectly plausible interpretation.

However, there is another possible interpretation, which gives a different result.  This interpretation is that the maximum that can be borrowed is not £200,000,000 but a lower limit, if a lower limit results from the subsidiary formulae, namely, either 40% of GDP or 80% of CFRAR. The maximum of £200,000,000 under this interpretation is an absolute cap applying if a higher figure results from the application of the subsidiary formulae. The words "higher" and "lower" in the sections being interpreted as circumscribing, not the two subsidiary formulae, but the overall amount that the law allows a government to borrow. If this second interpretation is correct, then the government has already exceeded its legal borrowing limits, because net borrowings already stand at £217,000,000.

If the Government has exceeded the lawful borrowing limit, then it has it has acted outside the law. If so this Government has breached its constitutional obligation of good governance. If good governance requirements are breached, the powers of the Governor come into play. If the second interpretation is the correct interpretation, there are, also,  repercussions to the UK government because it stands as banker of last resort to Gibraltar. Will it want an increased financial burden and/or debt risk in Gibraltar? Will the Governor's powers be invoked? If they are, are we back in the days of possible direct rule? I think there is enough material here to keep lawyers busily arguing for a while ...

Friday, 15 July 2011

The Press and Democracy

Recent events in England that have led to the closure of the News of the World have focussed attention on the press. It may have all come to public attention and scrutiny because of celebrity phone hacking but it has all led to more serious allegations of hacking. These involve alleged payments to the police. it has also and now become a debate about relationships and connections between the press and politicians. The debate has consequently evolved into analysing the functions of the press in a democracy. It is this debate that I find interesting from a local perspective. Is Gibraltar's press incisive and questioning enough to sustain democracy? Before I attempt to answer that question I need to briefly analyse what the functions of the "fourth estate", the press, are or should be. Also its importance to democracy.

The press does not simply have a two dimensional function. The immediately obvious dimensions of the press are to entertain, to inform and to stimulate economic activity. Entertain with crosswords, other games, cartoons, humourous stories and most importantly sport. The stimulation of economic activity is achieved by advertising. Informing is probably the most important function. Without information, especially about government and politicians, there is little or no democracy because politicians cannot be held to account without an informed public. This is what I consider to be the third dimension.

Manipulation of information or the perception of an ability to manipulate information, into or away from press publication or the emphasis given to it by opinion, undermines the credibility of the press. If the credibility of the press is undermined the credibility of democracy itself will not stand up to scrutiny. Voters will vote on the basis of distorted opinions based on partial or outright propagandist information. Governments will be elected on the basis of partially biased votes manipulated by those politicians who at any given moment in time have power and/or influence that they can exert over the press.

The reason is simple: the press influences and creates debate, opinion and thinking. It does this in the main amongst those of us who do not generally hold strong opinions (undecided voters) or do not hold strong opinions on specific issues. For example, it is most unlikely that the press will change the mind of someone who, on religious grounds objects, to any form of sex outside marriage and, then, only within a heterosexual relationship. However, that same person may well have his/her opinion influenced on another subject, like which political party is more likely to protect against a change of the law that will allow gay marriages. If the information published by the press is purposely or inadvertently wrong on that subject, then the adverse effect on democracy becomes palpably obvious.

It is the obligation of the press to be inquisitive, in a responsible manner, in its search for the truth. It is its obligation to seek out wrongdoers and corruption in every sense of the word. Especially wrongdoers and corrupt persons who and practices that undermine and can destroy democracy. This is a solemn duty owed by the press to any community. What is presently being criticised in the UK is the methodology adopted by the press to achieve this objective.

The reasons for the criticism is that intrusive practices, allegedly in breach of the criminal law,  were adopted. These interfered with people's right to privacy, which outweigh the right of free speech and so the freedom of the press.  As Mark Twain puts it "There are laws to protect the freedom of the press's speech, but none that are worth anything to protect the people from the press". It is this debate that is now being had in the UK. It is about what steps can be taken, not only to protect people's privacy, but, more importantly, to delineate the relationship between politicians and the press. Parliament will have the responsibility of legislating carefully to protect without stifling the requirement that a free press is essential to the survival of democracy.

In a perverted way what a good place for the UK to be in.  Much of Gibraltar's press has not even arrived at a stage where such a debate is necessary. Not that I advocate having to reach that extreme and allegedly criminal destination that some parts of the UK press have arrived at. My point is simpler than that. We have two main press organs, GBC and the Gibraltar Chronicle. Both either directly or indirectly funded with public funds. There is absolutely nothing wrong with publicly funded press, after all that is exactly how the BBC is funded. There is a lot wrong, however, if the general perception is that because the source of funding is the government neither of these important press organs are as incisive or as informative as they should be, especially in terms of wrongdoing and corruptions. There is soemthing wrong if there is a perception of bias.

Each of GBC and the Gibraltar Chronicle are ultimately controlled, call it governed, by independent boards, in the latter case, I understand, by trustees. It is these bodies that should provide the primary defensive line against attack and or influence of journalists by governments. The responsibility of these governing body should equate to the repsonsibility that judges and, in relations to appointments, the Judicial Services Commission, have to maintain independence. They should apply the same level of safeguards, both institutional and legal, as the 2006 Constitution provides to the judiciciary.

Persons in power or seeking power will have little or no qualms in exerting their power to massage news for their own selfish benefit. If these governing bodies fail in their duty or fall under the influence of a government or other politicians, journalists lose their primary defence against being unduly and unfairly influenced. I add immediately that they retain their personal moral fibre, principles and ethics as journalists but that can be a lonely position to maintain.

My question is do the governing bodies that I mention feature at all in the eyes of the public? I hate to say but the answer is a rotund no. This is, importantly, unfair on the journalists that work in each of GBC and the Gibraltar Chronicle because it can leave them feeling unprotected. It is also not doing right by the public because perceptions of partiality and bias on the part of either of GBC and/or the Gibraltar Chronicle are more difficult to dispel. Additionally the ambition of journalist to uncover wrongdoing and corruption can be dampened by a feeling that adequate and robust protections will not be available to him/her should the proverbial hit the fan.

There are other press publications in Gibraltar. The Panorama that provides sterling criticism of government, despite the perception by some of partiality because of family connections with the Leader of the Liberal party. A perception that on an objective reading of Panaroma's content is probably unfair because its content is eclectic. There is also, now, Vox online, which is also critical. There is the New People, which suffers by its admitted close connection with the GSLP. Finally we have 7 Days but again, whilst not admitted, this is clearly a GSD partial publication. All of these provide some balance to the discerning but they do not detract from the reality that GBC and the Gibraltar Chronicle are the main organs for the dissemination of news and so the main opinion formers.

All in all not a great state of affairs only made worse by Gibraltar's size. Size dampens the desire to overly or unnecessarily harm someone due to personal or business connections and/or ties. These considerations or influences can also influence what is published. This is even more reason to, first make the governing bodies of each of GBC and the Chronicle perceptively more robust and independent and secondly to achieve electoral and parliamentary reforms.

Sunday, 10 July 2011

Budget Observations

I have been accused recently of criticising the Chief Minister ("CM") over form rather than substance on the subject of the budget and his speech. I make no apology for doing so. I believe that form, especially form and behaviour that has the characteristics that I have highlighted, is of extreme importance. It is different aspects of the behaviour of our politicians that gives an insight into their character such as enables the electorate to make a choice as to what type of individuals they wish to elect into Parliament and to potentially be a chief minister.

I felt it more important to prioritise that debate whilst it was fresh in people's mind rather than deal with substantive aspects of the budget about which we are reminded throughout the year because of the recurrent nature of budget details, as money is raised and spent. It is also a question of demands on my time. I have now had the time to dedicate to substantive issues on the recent budget.

Clearly the GSD government have had a budget strategy for many years that has delivered tax cuts and increased public expenditure, capital aspects of which have been funded in part by borrowings. This strategy has been highly beneficial to date but could have been improved if the Opposition had been more focused in its criticisms. Tax reductions are always welcome but they can only be welcome by those who are earning taxable income.

It is the responsibility of governments also to protect and help the less fortunate minorities that do not benefit from tax cuts because for whatever reasons, they cannot earn taxable income. I believe that there is massive room to look into how our social cases are financed. A root and branch reform of those could deliver more and better help at a lower cost and avoid abuses that exist today. They are the partly forgotten few in most budgets because helping them does not significantly improve the votes any party receives.

Has it been a good budget? Undoubtedly it has good aspects but that does not mean it is rendered free of criticisms. The opposite is also true, that because aspects can be criticised, it does not mean it is a bad budget. It means that either it can be improved on or that someone else would have done things differently.

One aspect that I always find odd is that there is a tendency to confuse the budget (government revenues and expenditure) with the economy. They are two very different things. Undoubtedly the budget impacts on the economy, to the extent that tax measures and government expenditure stimulate or stifle the economy. The opposite is also true, without a buoyant private economy there will be nothing to tax because profits and employment dry up. It is an aspect that is so frequently forgotten by governments, namely that the private sector and its success is what renders a government successful in the economy.

It is worth analysing the boasts of the GSD Government bearing the private sector in mind. Economic growth is driven by private sector entrepreneurship. The CM made the statement that "... the government is proud of its economic record". I beg to differ. It is the private sector that should be proud of Gibraltar's economic record not any government. Governments influence the ability of the private sector to deliver economic growth and create the environment within which it can do so. In this context it is always good to remember that a government's room to manoeuvre is limited by the parameters needed by the private sector to function, without a functioning private sector there is no economy from which tax revenues can be raised.

Gibraltar's economic success is down to several well known components of the private economy. The construction industry, which is now hugely dependent on public expenditure, how long can this continue for? The gambling sector, what any government can do has been done, all that is required is continued licensing of only the best players and impeccable supervision. The finance centre, about which the CM has admitted that Gibraltar's transition is now complete but which undoubtedly can be expanded with government sposored promotion.  The CM has helpfully announced in the budget that the Government will increase expenditure on attracting finance centre business. The tourist, retail and wholesale and the bar and restaurant sectors, which I group together because, in my view, they are each interdependent. In this sector what is required is constant fine tuning, subject to the frontier remaining open, fine tuning that all administrations have historically undertaken and committed to. Lastly the fuel and bunkering sector, which again save for some occasional fine tuning, trundles along very nicely thank you very much and is supported by all politicians of whatever leaning.

It is not my intention to trivialise the importance of government's involvement in creating the correct environment in which the private sector can continue to grow our economy. This is especially important in matters of licensing by which government can stifle growth, for example, in the highly regulated finance industry. My point is that once it is done, it is done and any administration can continue or improve it. What we have to watch out for is that no replacement government spoils the environment by its actions or inaction. I do not see that this is actually within the realms of possibility, now. It happened once and the lesson has clearly been learnt.

The conclusion of this argument is that what one has to look at and analyse in assessing any government's performance is not revenue (whilst a government is not spoiling the economic environment) but rather what it is spending our public moneys on. It is easy to spend money badly and/or well when it is rolling in. I believe that  serious mistakes have been made by this administration on this side of the equation.

One mistake is not prioritising the right projects and prioritising the wrong projects. Another has been the various rescues of private sector affordable housing projects. I will not dwell on the cost that has resulted to the people of Gibraltar from the Government's intervention in these projects. These have already been publicised by opposition politicians and are well known to voters. If these mistakes were not to have been made, more money would have been available to be spent on other more worthwhile heads of expenditure, policies or allow for bigger tax cuts.

One such wrong prioritisation is the huge expenditure on the Air Terminal whilst ignoring Gibraltar's energy needs. Gibraltar is resorting to skid generators to meet its energy needs today. I do not know but this cannot be a cheap option for Gibraltar, both in terms of provision of equipment and in the ongoing cost of running that equipment. Provision of electricity in this way also cannot be very environmentally friendly. The excuse that environmental and planning issues have delayed the provision of the new generating station sound hollow to me. Gibraltar has known for nigh on 20 years that it needs a new power station. 20 years is more than enough time to have resolved all and any problems and to have delivered a fully working electricity generating station to meet Gibraltar's power needs.

The private sector cannot function without power. If the private sector cannot function, a government would not receive any revenue. Both can function without a state of the art Air Terminal. Which is more important to have done first? Keeping these arguments at the forefront of one's mind, does the justification by the GSD Government of their decision to prioritise the construction of the  new Air Terminal over and above a power station not begin to sound a little hollow? Will it really be a statement of Gibraltar's stature and international standing, as the CM has said? Or was it just the expensive keeping of a promise to Spain arising from the trilateral talks paid for by us?

My concern on this front is heightened when I take into account the figures that we now have as to the level of net public debt. The figures used are taken from the CM's budget speech. The net public debt stands at £216,700.000 (without taking into account any off-balance sheet borrowings structured through wholly owned government companies). The maximum amount that the Government is permitted by law to borrow, according to the CM,  is presently £305,000,000 of net public debt. This leaves a balance available to Government of £88,300,000, were it to decide to take the net public debt to its limit.

Well, my question is a simple one. Government has ongoing projects that it needs to finance, it also has to finance the construction of a power station, which I understand (from public sources) will cost in excess of £100,000,000. Where is this money going to come from without either increasing borrowings or (if there is limited or small growth in GDP) exceeding legal borrowing limits? There may well be an answer. The answer  may be to stagger the repayment of existing loans in tandem with drawdowns on any new loans. I would like to know whether this is the answer. It would also be good t know by how much the public debt may increase from time to time. Additionally, whether other projects will be put to one side or delayed as a result of the priority given to the Air Terminal.

The CM and the GSD has criticised the Leader of the Opposition for using per capita statistics to illustrate that the public debt is high. Unmitigated attacking of opposing views is a form of spin much liked by the CM, used by him defensively to deflect attention, when he is on his back feet. He has said that this statistic is not a proper measure of public debt. He has said that the impression has been given that each of us owe this amount and that people are frightened by this belief.

To say that it is not a measure of public debt is wrong, it is a measure that is used elsewhere. Anyone can Google "UK public debt per capita"; such a search will immediately produce many results. One of which is a clock that gives the increasing amount virtually by the minute. Undoubtedly, the per capita amount of public debt in Gibraltar is high when compared to other jurisdictions. The Leader of the Opposition is not an "economic illiterate" for having highlighted these statistics.

It is correct that each one of us does not owe this amount personally or directly. However we do owe it as a community. It can only be paid out of government revenues or renewed borrowings, subject to credit worthiness and availability in the credit market, which even the CM has admitted is tight. Government revenues are essentially direct taxation, which each one of us do pay, or indirect taxation which we and tourists pay. The Government can increase both and would have to do so if, instead of being in surplus, the budget goes into deficit, so in that sense each of us do owe and pay the public debt. Admittedly taxation is paid progressively so the wealthier would pay a greater share than the less wealthy.

Any answer given by the Government as to where the money will come from in future should make clear what, if any, reserves, Gibraltar has. The answer should also include the projections for reserves from time to time as expenditure that is already committed to is paid and required capital expenditure is incurred in the futrue, especillay on the new power station. There is a section in the CM's budget speech with the title "Government Debt and Reserves". There is no mention, however, of the subject of reserves in the speech.  The balance between the gross debt and the net debt is explained on the basis that this is money borrowed and kept in cash form by Government to give pensioners increased returns on their debentures. This being the case can it also be counted as reserves or as being available to meet future capital expenditure that Government is committed to meet? I would have thought not.

It may be that I am an "economic illiterate" also (after all I am a lawyer, just like the Leader of the Opposition but there again so is the CM) but those who are in power, those who have the obligation and responsibility to manage public funds (and so are hopefully "economically literate" or are surrounded by advisers who are) have a duty to explain to the electorate whether indeed there are reserves . In the end it is voters who provide the funds that the Government expends . It should apply the highest standards of a fiduciary nature when incurring that expenditure, supposedly in an open and transparent manner. Therefore it is to the electorate that the Government owes explanations. The electorate do not need to hear the vitriolic criticisms of the Leader of the Opposition that it has heard, in a reply to the Opposition by the CM in a reply that lacked sufficient explanations, irrespective of whether or not the performance of the Leader of the Opposition was lacklustre.

I now turn to the subject of our elderly and the ill. I am sure we all fully support the Government's initiatives to help the elderly, cancer sufferers and the mentally ill. It is salutary to see the provision of additional facilities for old people with moderate independence, a new centre for cancer relief and a hospice, a new mental health hospital, a home for people with seriously debilitating illnesses and a residential home for sufferers of Alzheimer's and dementia.

What is lacking in justification and discriminatory are the taxation benefits that have been provided to pensioners. It cannot be objectionable for a government to ensure that pensioners have what they need to ensure a comfortable lifestyle but they are being advantaged by this Government beyond what is reasonable. They have masses of tax relief, yet receive all the benefits of the State and more than all who have not reached pensionable age. Taxpayers subsidise the cost of increased interest returns paid to pensioners on their investments in government debentures, yet those pensioners, who can afford to and should pay tax, do not do so. Thus they do not contribute to the funding of these advantages. There are more and more pensioners and projections show that we will all live longer, how long can this be kept up? It is a vote catching exercise at the expense of younger hardworking taxpayers.

A government has to be responsible in the manner it gives tax benefits. Tax benefits should be across the board and equal for and fair to all. Advantaging a particular group is discriminatory and unfair and, if that group is pensioners, it will become over time too costly to sustain. The problem  is that once an electoral group has been advantaged, the political cost in votes makes it nigh on impossible to reverse the situation. This will only change when and if those working who are paying tax, thereby subsidising the excessive benefits enjoyed by pensioners, make it very clear that they will not tolerate such unfairness any longer. The unfairness is further exacerbated when one considers that many are better off retired than when they were working and paying tax. There is undoubtedly something wrong with that, something that, at some stage, the voters who are working and paying tax will  not condone further.

The use of tax money is an important subject, so is it right for a government to "invest" tax money in office developments? The first question is, will government be breaching its public covenant with the people by spending money compulsorily confiscated from taxpayers on what is not a communal purpose?  I would have thought they are but the debate does not stop there.

The CM has justified such an investment on various grounds. He says that the lack of office space will undermine our ability to attract business. Further that the lack of available bank finance or private finance should not stifle the creation of jobs and economic growth. These are valid arguments, save that, if indeed the demand exists it should be possible to find the investors to undertake the project, but these arguments miss the point. The criticism levied by opposing politicians to this policy also miss the point. The criticisms have, in the main, been personalised and been centred on not favouring a particular developer and development. This type of personalised criticism is not unusual in Gibraltar. I do not believe, however, that this personlaised line of argument is to take the debate to the right place.

This debate, in my view, should centre more on whether a government should be interfering and so distorting Gibraltar's traditional free economy. We do not live in a Communist state nor is the GSD a party with communist ideology. Special and careful consideration must be given before a government distorts free market forces. In this regard I agree with the Chamber of Commerce's criticism. There are many questions that come to mind arising from this Government's intention to involve itself in the financing of an office development.

Is it  not an interference with the legitimate interests and financial obligations of those who have already invested in offices without government assistance? What effect would the government investment have on them?  Why should they have not been favoured in this way in the past? What effect will this availability of extra office space have on existing rental levels? How will the developer who and development which is to be favoured be chosen? Will the process be open and transparent? Who will negotiate the terms of Government's investment and involvement? Will they be purely arms length commercial terms? Will banks, which have financed other developments, not be frightened off by government competing with them in the field of finance? Will potential future investors in property developments be put off by the fear of competition from Government? How will the Government's involvement be structured to avoid all these potential repercussions?  I fear that this policy has not been carefully thought through and analysed. The repercussions may be far reaching.

These are my thoughts on the recent budget. Is it a good budget? On the whole yes, it has good parts but it has many unexplained aspects and much about it that can be criticised. It seems that the debate in and out of Parliament has been superficial. The Opposition's analysis has not delved deep enough. Its criticisms have been light where they needed to be stronger and strong when they needed to be lighter. The CM took advantage of that failing. The result is that the CM has got away with it, again. Opposing politicians should not allow him such leeway. Gibraltar would be a better place if opposition politicians, in and out of Parliament, were to be more discriminatory and incisive with their criticisms of Government.

Thursday, 7 July 2011

Parliament or the Star Chamber?

Tonight I was introduced to an English lady who has been working in Gibraltar for a short while. We got talking, briefly about today's headline story in the Chronic: "Picardo is 'Not Fit" to be Chief Minister". She reminded me of a Shakespeare quote from Othello Act 3 Scene 3:

"Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; 'tis something, nothing;
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed."

As this quote advises, the Chief Minister does not enrich himself by his vitriolic attacks on the Opposition, specifically the Leader of the Opposition. He does not gain electorally from it but impoverishes Gibraltar as a community and reduces the respect in which it should be held. He prides himself and boasts of the restoration of Gibraltar's reputation by the GSD Government. Does this behaviour by the Chief Minister enhance this reputation? I would suggest not generally and certainly not politically. It brings our Parliament into disrepute.

There is no reason whatsoever that could justify such behaviour by the Chief Minister in Parliament, whatever he might accuse the Opposition or its leader of in order to argue that his attack is legitimate. A Chief Minister, as the face of his community, needs to ride above such behaviour. He should choose less emotional and vitriolic language to defend his policies and budget, if they are as right and good as he boasts. The budget should speak for itself. It should sell itself. The prosperity of Gibraltar that he pronounces should be sufficient to tell the good story. 

The Chief Minister judged and considered appropriate that he should proclaim in Parliament that in light of "... the combination of the ignorance he [Mr Picardo] displays and the deceit to which he he sees fit to resort, he is unfit to be Chief Minister ...". I do not wish to anger or disillusion Mr Caruana but it is not he who decides who may or may not be  fit to be Chief Minister. In the case of the GSLP the first choice of a potential Chief Minister is made by its members (at least they get a say, not like in the case of the GSD). It is the members of the GSLP who choose the leader of their party. In the second place, more importantly, it is the electorate at a General Election who vote and choose their representatives. It is from those representatives elected into Parliament that the person, who has the confidence and support of the majority of MPs, is chosen and becomes the Chief Minister.

The Chief Minister in Parliament yesterday also described the Leader of the Opposition as "... economically illiterate, ignorant, deceitful ..." , of " ... misleading and scaremongering the people of Gibraltar on the back of his economic ignorance ...", of the Leader of the Opposition " ... having no moral compass, let alone a democratic one... and a systemic lack of sincerity". Judge, jury and executioner, hence not Parliament but rather, once again, the Star Chamber.

I always understood that "unparliamentary expressions" are not permitted in Parliament. based on this understanding I grabbed my copy of the "parliamentary bible": Erskine May's "Treatise on the Law, Privileges, Proceedings and Usage of Parliament". It did not take me very long to find the following passage:

"Good temper and moderation are the characteristics of parliamentary language. Parliamentary language is never more desirable than when a Member is canvassing the opinions and conduct of his opponent in debate"

It then gives examples of unparliamentary language: the imputation of false or unavowed motives, the misrepresentation of the language of another and the accusation of misrepresentation, charges of uttering a deliberate falsehood and the use of abusive and insulting language of a nature likely to create disorder. How many of these have been breached?

So who presides in our Parliament? Who maintains order during debates? Who has the authority and responsibility to punish MPs who break the rules of Parliament? It is the Speaker. I have to ask, where was he when all this was happening? An exacerbating factor is that the Chief Minister was exercising his right of reply. The Leader of the Opposition had no right to come back on the Chief Minister. It is incumbent on the Speaker to control Parliament at all times and protect MPs from unparliamentary behaviour, more so the case when the MP being lambasted cannot defend himself with a reply in the debate.

The Chief Minister has, to make matters worse, given notice that he intends to propose a Motion in Parliament against the Leader of the Opposition. This Motion is full of "unparliamentary language". It is also a bizarrely dangerous and anti-democratic act, not least, because the Chief Minister can use his executive power and that of his Minster, who have the majority in Parliament, to ensure that this judgmental Motion is passed, without evidence, judge or jury. This further likens Parliament to the Star Chamber rather than to what it is, the Legislature. Will the Speaker do anything to protect against what, to me, smacks of abuse?

If this is the manner in which the Chief Minister treats and deals with an MP, who is an elected representative of the people of Gibraltar. If this is the manner in which the Chief Minister treats and deals with the Leader of the Opposition. What hope has a mere mortal if he incurs the wrath of the Chief Minister? I may find out ...

Sunday, 3 July 2011

The Lesser of Two Bad Choices?

There are some who have suggested that the best way for the electorate to show its feelings about the choice available at a general election is to vote in blank. Certainly this is an option but it is an option based on apathy and negativism. A far stronger message can be delivered by voting rather than not voting. It is in the manner that one votes that a more powerful and louder message can be sent to those who put themselves forward for election. In this blog ( and in furtherance of the "fierce independence" that the "7 Days" newspaper has complimented Llanito World on) I explore some possible reasons why Gibraltar might be where it is electorally and provide an alternative way of casting a ballot paper at the next election.

One of the opinions that is more and more often voiced and heard is that, if one comes to the conclusion that the choice is not good either in favour of the GSD or of the GSLP/Liberal Alliance, then the only option is to decide who is the least bad and to vote  in that manner.  It is not a conclusion that I support or advance. This conclusion is predicated on the wrong argument. If put into effect it will deliver exactly the wrong government. It accepts the status quo that has been sold by the propaganda of the political classes, namely, that one has to choose between one party or the other and vote accordingly, ignoring the individual attributes of each candidate. Voting in this manner will not deliver the democratic revolution that is required to improve the system of government that is needed to improve and defend Gibraltar.

The wrong argument because it is predicated on the perceived strengths and weaknesses of each of the leaders of each party, presently, Peter Caruana and Fabian Picardo. I have said what I am about to say ad nauseam, the election is not an election to elect an all powerful and autocratic president. The election is to elect a representative legislature, a PARLIAMENT, from which a government and Chief Minister subsequently results. It is important to understand this fundamental attribute of our "Westminster" style of government and democracy. The "Government" results from the grouping that can rely on support from a majority of MPs. The Chief Minister is the person who has the confidence of those who are part of that majority.

The party system is an evolution of that basic concept that I have described. It is the obvious and most beneficial (for power seekers) manner in which the system can be played: rather than wait to see who is elected and then seek to form a grouping to gain power as government and Chief Minister, form the grouping before the election. If the grouping (party) is formed before the election then the grouping can choose its most popular and charismatic (as they see it) member of that grouping. They and he/she then proceed to"sell" him/her as the person to be Chief Minister.

The other members of the grouping then have an easier task all round, at the election and after being elected. They simply have to hang onto the coattails of the leader, get themselves elected and earn their salaries (and pensions after 8 years) by toeing the line and policies of the leader. Toeing the line because not to do so, threatens their individual ability to earn larger salaries than most of them would earn in the big wide world.

This party based system that has evolved is a perfect recipe for a corrupt system of government in any small jurisdiction. A corruption which is aided and abetted by weak internal party structures. Weak structures because traditionally in Gibraltar parties do not adhere, as strictly as they should and which is the norm in western democracies, to democratic methods of choosing either their candidates or leader. This criticism can be levied more against the GSD than the GSLP.  At least the GSLP do have some party structure and have some form of elections for its candidate and leader. I am just a little skeptical as to how this system is given effect to and operates in practice.

So what should a voter do when faced with these circumstances? My first suggestion is that he/she should ignore the leaders of each party. My second suggestion is that he/she should ignore party labels against the name of each candidate.  Doing this opens up the electoral choice of each voter massively because there then remains a massive choice to be made from amongst each individual candidates, from whatever party, who puts himself/herself forward for election. Each voter should analyse the individual attributes and failings of each and every candidate, irrespective of party allegiance, to decide which individual candidate deserves one of his/her vote. Having done this, it is those individual 10 crosses that will go onto one's ballot paper.

The practical effects of doing this could be very interesting. There is no doubting that each of the parties have a substantial following of committed voters, so this will not likely change. Each of the parties will receive this basic support. There is also no doubting, as can be gathered from all Opinion Polls, that there is a large number (and so hugely powerful) block of voters who are called the "undecided" who I would label as the "uncommitted", in science "free radicals". It is this block that I am appealing to.

If a large proportion of these were to follow my suggested course, one of the first effects that would be noticeable is that the leader of each party may not get as many votes as  traditionally each has. They may not even top the polls: now that alone would send a powerful message of discontent, wouldn't it? My suggestion brings more into play those who offer themselves for election as independent and those who do so within the PDP, which, presently, is not one of the two major parties, yet presents some very capable candidates. Electing some persons who do not belong to the major parties would enhance the workings and effectiveness of Parliament substantially. Another effect is that it may well get the "best brains" ( a frequently heard mantra), from amongst those putting themselves forward for election, elected into Parliament. Additionally, within the system as presently exists, it is an excellent way in which the electorate is able to flex its muscles and show those individual leaders, who consider themselves to be indispensable, that it is the electors who, in the final analysis, govern not them and that, just perhaps, none of them are as indispensable as they and some others may consider them to be.

One fear that constantly concerns me is the fear that Gibraltar should suffer a governmental and administrative vacuum. The present electoral, parliamentary and party system militate against some idiosyncratic talented persons who have much to contribute to politics, government and administration putting themselves forward for election. We must accept that, whilst Gibraltar produces a disproportionate number of talented individuals, its size is a limiting factor that does not permit it the privilege of having a system that discourages anyone from active participation in politics and government. This deficit can be resolved, to a degree, by electoral and parliamentary reform, which I have been championing for some time. Although, it is salutary to see that all the parties are now convinced of the wisdom of enacting such reforms, this is not enough (and needs to be judged once enacted), electoral behaviour is an important element in the democracy equation, which will continue to have its place irrespective of any reforms. This is a core benefit of democracy.

There are moments, I believe that we are facing one now, when the electorate should be revolutionary in its behaviour (peacefully, I hasten to add). The only advantage of a vacuum, such as the one that I have written about, is for the UK and Spain. They can exploit a vacuum for their own respective objectives, aims and policies; objectives and policies, which, by reason of the respective sizes of the UK and Spain and the ambitions and responsibilities of each, may and will from time to time transcend those of tiny Gibraltar and may not be in  its interests. Everything possible should be done to avoid that happening. It is the responsibility of the political classes to put into place objective safeguards and systems so that the chances of a political vacuum coming into existence are reduced. It is a wise electorate, carefully choosing each individual candidate and voting accordingly, that can force the issue and make it happen.