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.


  1. How much will the Borders and Coastguard Agency cost? The bunkering industry will be the most closely connected to the Agency by which it will be controlled and from which it will benefit. Should not the bunkering industry pay for it? I worry that otherwise the Agency could be another mill stone around the taxpaying private sector's neck, you know not, the "consultants" ;), the subsidised office block builders and gaming and tobacco companies but the ones that this government ignores, small business i.e. the core of any long term economic strategy (now there's a phrase that the dilettante PRC should read up about "term economic strategy")

  2. Ellos se lo guisan y ellos se lo comen!!!

    Another Great article... thank you.

    Mr Governor, please put this house in order. As eloquently described by Mr Vasques, there is much 'sweeping' to do (not under the carper).
    No wonder we are aften thought of as 'mafiosos'.

  3. RV,

    Why do you honestly think this Agency has been created?

  4. Disciple X

    I haven't got a clue ... do you? Am I missing something?

  5. RV,

    No quiero ser mal pensao, but it seems that the Governor's powers is slowly being, not eroded, perhaps not even being undermined but certainly challenged!

    The Governor's response will surely give an indication but until then... none the wiser.

    Having said that the Government is going ahead with the creation of the Agency including discussions with the Union...a fait accompli then?

  6. Disciple X

    "Mal pensao"???? Did you not previously state you were a female on this same blog?



  7. Robert

    From Euro Weekly News yesterday:

    "SPAIN’S Popular Party (PP) has criticised Gibraltar’s creation of the new Borders and Coastguard Agency. It may be “an attempt to create borders,” said Jose Ignacio Landaluce, a Member of Parliament for the PP".

    Now there's a surprise.

  8. KJ@01:05

    Another valuable contribution by Kaelan.

  9. Robert

    Is there the remotest chance that the Bill has been instigated by the Secretary of State for Foreign and Commonwealth Affairs?

    Just a thought.

  10. RV,

    Re: k

    Yes I/we did...

    Are you

    Disciple X belongs to BoB (Brotherhood of Bloggers)..or if you prefer..our High Priest's nickname. No need to explain that one,right?:)

    As bloggers I/we have no gender nor political affiliations.

  11. Tyrone Duarte:


    Thank you for your comments on this development.

    I am perplexed by the mish-mash of functions assigned to this proposed new agency.

    Who exactly is advising the Government on what amounts to a partial reform of the security sector?

    It all looks as if it's been done on the back of a fag packet, as if publishing a piece of legislation will result in the emergence of new capability. Do lawyers really think that they are experts on everything? Don't answer that.

    I think we are at risk of creating another cash gobbling, and sinecure generating, bureaucracy. Not to mention the operational tensions that an agency like this will generate in what is already an overcrowded space for law enforcement agencies.

    Furthermore, none of the existing agencies are anywhere near having the type of capabilties (training, equipment, personnel, logistics, etc) required to conduct tasks such as search and rescue. Mi abuela simepre decia que el que trataba cagar mas alto que el culo se llenaba de mierda.

    I have a more radical solution that would create a better capability, but would do away with all the existing structures: police, ambulance service, the fire services, etc. etc. Needless to say It would upset a lot of people, but would be more efficient and I think save the tax payer a great deal of money. In a place like Gibraltar we do not need multiple agencies. I may e-mail you separately on this issue, and then maybe put something out if I get round to writing it - then again others are getting paid to do this (!)

    As for political control, I still maintain that it's all gone down hill since the Deputy Governor ceased to oversee local law enforcement. I am of the view that law enforcement has become highly politicised, perhaps not overtly, but certainly where it matters.

    I would like to know the Convent's view on all this, but I think they will be as diplomatic as ever. Others could take a leaf from their book.

    I never thought I would find myself wanting more FCO involvement in something. I guess neither did the Jamaicans, but I recently read in the BBC that they yearned for the good old days of direct rule from the Mother Country. Que pena conyo.

  12. Robert Vasquez
    Llanito World

    Dear Sir
    I do read your blog and praise you on nearly everything you say or suggest but only 5 percent if that can follow the full implication of what is said. The general public deserve some down to earth facts and discussions on things that hamper their lives on a daily basis. and thought buses is one of them.

    Free city buses
    Having lived in UK, Spain and Gibraltar over the last 20 odd years were extremely delighted when Government initiated its own blue public buses company in 2005 thus removing the other older service that exited. Have to say route 10 red buses mainly used by us have always given an excellent service with a perfect time table. A free or subsidies city bus service for the local inhabitants ID cards holder is welcomed in order to have fewer local vehicles on the roads
    Having said that we are unable to figure out how the transport authority or government can expect to operate a city free bus service for everybody without an increase number of buses.
    Spaniards and other nationalities will continue driving into Gibraltar t o buy their goodies
    Parking charges are free or very cheap in Gibraltar if charged in line with Spain it would deter locals who mainly have a secure parking space but tourist driving into the city areas.
    Frontier paying buses to town are very cheap compared with the rest of Europe and perform a good quality service;
    A free city bus in my opinion will not work since VISITORS WILL OUTNUMBER THE LOCALS AT PEAK HOURS, and a greater number of buses will have to be employed.
    Free city service ought to be replaced with a realistic subsidised ticket for non inhabitants in order to protect and not deprive the community of their transport facilities and derive an income.


  13. More buses at peak hours?

  14. Visitors bring money into their economy we should not discriminate against them.

  15. Robert

    How did we ever get to the situation whereby security and immigration control were provided by a privately owned company?
    It is something that I have often wondered about but which has never concerned me unduly. I am just curious. Can you help?

  16. Anon@11:39

    I agree, and what is more, although we are unlikely to attract more tourists simply because they can enjoy free bus rides tourists will go away impressed that Gibraltar is a tourist friendly destination.

    Anyone seeing locals getting on free whilst non residents have to pay would go away with a very negative impression.

  17. Anon 11:39 and 12:23 I disagree.

    You reap what you sow.

    Non residents should PAY whilst locals should NOT.

    Locals (regardless of nationality) should be treated differently because they have contributed to the success of our economy.

    Our people should be given preferential treatment in OUR land.

    Why should people be given everything in exchange for nothing?

    Let us remember that charity starts at home.

    Gibraltar should be first and foremost for the GIBRALTARIANS.

    Nowhere else in the world do non locals get free pass buses.

    When levels of political correctness are taken to absurd levels we start having problems like the UK is currently encountering.

    What we need is to grow a pair que lo llanito somo todo uno cabr%ne!

    Ps – Please pardon my French. : )


  18. The solution to the bus debate is simple. Charge journeys for all. Offer weekly, monthly, three monthly, six monthly and yearly season tickets and tickets for a fixed number of journeys to all who want to pay for them at a reduced rate. Offer free bus season tickets to the over 60's.

    Like this locals get some financial benefit, the bus company receives some money from locals but most comes from those who are not local. It is what is done all over the world.

    Simple really, why invent the wheel when it was invented elsewhere donkeys years ago :)

  19. to Anon 11:39 and 12:23

    What do you mean by discrimination?

    Should we offer non locals free or subsidize price to visits to the upper rock nature reserve caves the reduce price paid by locals to use the cable car to mention a few? estamos loco who do you think pays for all these free goodies you want them to have. think Gibraltar first, if you have traveled perhaps you should tell us where such a free service exits.

  20. The purpose of public transport is to help people be mobile in the cities. It is especially important for elderly people, children and those, who for various reasons cannot afford personal transport. On the other hand, this is an investment of governments in protection of the environment and reduction of the pressure on traffic and air pollution. With that in mind, I strongly believe that public transportation should be a SELF-SUSTAINABLE MECHANISM and should be able to bring income to the authorities; it should also take into account the primarily objective of any community and government initiative to satisfy basic transportation NEEDS OF POPULATION.


  21. Pros and Cons of Free Public Transport
    Public transportation is an extremely valuable offer that government gives to the citizens. Looking at the public transport systems around the world in attempt to find the ideal set is very interesting. It is almost impossible to find the system that will always be appreciated by employees of the system, government and, of course, users of the public transport.
    Public transportation and the way it should develop and benefit POPULATION in the country is one of the topics that media gives special attention. First of all, public transport and its role in development of convenient and easy living for elderly people from low-income families as well as disabled individuals is always on top of the social responsibility discussions. SHOULD PUBLIC TRANSPORTATION BE FREE FOR EVERYONE? Should it provide particular population segments with discounts and subsidies for its usage? Or should it be based on commercial ground and become a revenue generating tool for the governmental authorities? These are the core issues that are debated on high levels in the government as well as among regular citizens of the countries we live in.
    The first one is that of social and economic justice; why should an unemployed person pay as much as a millionaire to ride with the public transport? Instead of having a system where everyone pays the same to ride the public transport, we want a fully tax-financed system where everyone contributes according to his or her ability. In a CITY LIKE STOCKHOLM (CAPITAL OF SWEDEN) all commuters who earn less than 5000 euros a month would benefit from a tax-financed public transport system.
    The second reason to fight for a free public transport is that of taking control of, and changing, the development of our cities. Instead of having streets jam-packed with cars, air filled with exhaust fumes and subway stations blocked by barriers, as gigantic and ugly as they're expensive, WE WANT CITIES THAT ARE BUILT ACCORDING TO OUR NEEDS AND WANTS. CITIES THOSE ARE FRIENDLY TO THE PEOPLE LIVING, VISITING AND WORKING IN THEM AS WELL AS TO THE ENVIRONMENT. CITIES WHERE TRAMS, BICYCLISTS AND PEDESTRIANS HAVE FORCED THE CARS BACK TO WHERE THEY BELONG - THE GRAVEYARD FOR 20TH CENTURY MODES OF TRANSPORT.
    local inhabitant.

  22. K

    24 JULY 2011 22:17

    Agree with you 100 percent need more like you to protect the local community.

    old timer

  23. Thanks old timer :)


  24. What a great idea, free buses for all! Now regular bus users can wait at the bus stops while buses drive past full to capacity with tourists and their guides conducting organised tours depriving tax paying transport companies and taxi drivers of work. These guides can now pocket all the visitors money without the need of paying a local transport company and may visit Europa Point, the east side etc. How long will the red bus company survive now that tourists and frontier workers are discovering that they can walk over the live runway, which is a unique experience for tourists in itself, take a photo like "Top Gun" and pick up a free bus at Referendum Bus stop. Another great idea which will help boost the already "rosy" local economy!

  25. I wish that things were done with some forward thinking and true planning. When the new bus routes were designed they were done so by a group of individuals who do not take the bus, there was no input from regular bus users and the opinions of the bus drivers themselves were not included. The committee included high ranking people in suit and ties. The hub at Market Place is a disaster especially when cruise liners are in port. The taxi association provide a valuable shuttle service that transport passengers rapidly to town to increase their time in town which increases their chances of purchases hence increase sales to traders. Why do all buses ave to meet at Market Place?

  26. Free buses yes. They have increased the amount of local people using the buses without a doubt.

    I can imagine various practical reasons why its free for locals AND for visitors (cuts out the "pay-delay" for one thing with the fumbling euros/sterling tourist being one of the biggest culprits).

    There is nothing wrong with the Government funding a public bus service. I much prefer my money to be spent on something that can benefit everyone rather than on funding some blokes office block development (especially when he didn't have to tender or pay for the land which he is going to build it on).

    The downside of the new system is the routes, the timetables, the route maps, and market place. The latter has no shade, no seats, no timetables. The route maps are done as if the routes were circular - but the routes are not
    circular (even as a local I find the maps confusing).

    Timetables - everywhere else in the world manages to have timetables that tell you when the bus is supposed to arrive at the stop you are at (some places even have countdowns to the next bus). Here in Gib its your job to guess when the Route 2 might arrive after its 19:50 departure from Europa.

    Lastly, market place central hub does not work. Bring back the old route 3 please!!!!!

    That said, the bus service we have today is still better than it has ever been. Even taking into account this crazy market place based route system.