Financial Services Commission and Politics

Last Friday I visited the FSC website to see whether the much awaited statement on “Policy on Public Comment and Political Involvement” had been published. I found a tab on the site with that title but the page in question would not open. I then emailed the FSC to enquire about my inability to access the relevant page. I received a reply by return from Marcus Killick, the CEO of the FSC, to the effect that there was a glitch on the webpage, which his team would proceed to repair. He kindly emailed me the policy. I have raised a variety of issues and questions on it directly with the FSC. The policy can now be found on: 

http://www.fsc.gi/aboutus/policy.htm

My concern is not that I resigned from the FSC. I did not wish to remain on the FSC in disharmony, due to my continuing to write this blog.  Especially in circumstances that the FSC felt it should have a restrictive “Policy on Public Comment and Political Involvement”. I took this view, even though, throughout my appointment, I had publicly participated in public political comment on TV and the press. I had also campaigned prominently in the 2006 Constitution referendum as part of the "No Campaign".  I undertook all this public political involvement without complaint from anyone in the FSC or elsewhere. The primary reason for my resignation was that it was intended to open up the way for the FSC to introduce an objective, fair and transparent policy and allow me to continue blogging unhindered by any restrictions contained in that policy. I fear this has not been the result. 

The FSC “Policy on Public Comment and Political Involvement” seems to have been designed to conveniently cater for very specific circumstances and so, in my mind, fails to achieve that which I understood and was told was intended. The overall impression that I now have is that, intentionally or unintentionally, the policy permits FSC members to speak publicly in favour and in support of the Government but not against it. This cannot be right.

The overall focus of the policy that I have read seems to be to prevent the exercise by FSC members of the right to freedom of speech unhindered, save if any comment is made in support of the Government. This is, in my view, the most undemocratic ingredient of the FSC’s policy. To make matters worse, the policy does not deal with the core issue of “political involvement” of FSC members, beyond the extreme case of prohibiting a member from being an MP or holding an elected public office.

An FSC member is permitted, oddly, to hold a position within a political party so long as such position is not a particularly sensitive one or a high role in the party; further and in addition, so long as the position does not involve a member making public statements. Unfortunately this does not work. If an FSC member forms part of the Executive of a political party, he cannot disassociate himself from any public statement made by the relevant party. Additionally how can it be seriously argued that a person who is or has been a member of the Executive of a political party and an election agent is not engaged in or seriously connected to a political party and so involved in politics? If the party in question is in Government, it does not ameliorate the situation, it worsens it.

My view is that it is difficult, if not impossible, to find a half way house on the subject of “Public Comment and Political Involvement” by FSC members. The policy must be either an absolute prohibition (difficult in a small jurisdiction like Gibraltar which is littered with business, employment and family connections and with interlocking friendships) or not exist at all. The FSC functioned when there was no policy on the subject in question without any complaints of political bias or partiality. The reality is that the integrity of the members of the FSC’s and its mixed composition had the effect of balancing out views.

The effect of introducing a policy, on the terms published by the FSC, is that it has the attributes of the proverbial horse designed by a committee, which is a camel. I believe that the FSC needs to revisit this policy and decide what it wishes to achieve. Its aim and duty, as a regulator, is to be objective, fair and transparent. If this requires it to revert to having no policy or no prohibition at all on this subject, so be it.

There is one peripheral but related issue that I feel needs to be dealt with by the Government. The issue of whether the FSC should have a “Policy on Public Comment and Political Involvement” was prompted by an inquiry by the Chief Minister of the FSC Chairman. This inquiry in turn arose out of the FSC’s reaction to a criticism made by me in an email, circulated to and in defence of lawyers, expressing my view on events prior to the “Marrache affair” coming to light. In these and the overall circumstances, I suggest that it may be appropriate for an independent public enquiry to be held to inquire into all aspects of how and why what transpired in the “Marrache affair” was not uncovered earlier. It is likely that it is proper that the enquiry could and should not commence until after any criminal proceedings are finalised. However, there is no reason for the Government not to publicly announce, now, its intention to hold such inquiry.