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.