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.