The Self Determination Delusion

We are right in the middle of silly season in politics. Many are on holiday and so political activity and interest is at a minimum. It is, however, a good time to reflect on political issues, especially those that become accepted folklore without further scrutiny, analysis and criticism. With scrutiny, analysis and criticism new roads towards ultimate objectives can open up. One illusion that the GSD is responsible for creating is the belief that the 2006 Constitution together with the referendum was an act of self determination. As I have argued frequently, it was not. It was a welcome step on the road to greater self government but no more. My question is, can we use that advance to accelerate our journey to self determination?

Before I answer that question, I shall briefly explain (again and with apologies to those who have read this before) why the 2006 Constitution was not an achievement of what was intended (and some in the GSD advocate) that it would achieve: self determination. First and importantly the Governor and the UK Government retain substantial powers. They are responsible that laws are made for the "... peace, order and good government ..." of Gibraltar. The Governor with the consent of the FCO MInister has powers to make laws on matters that are within its remit. These are external affairs, defence, internal security and certain appointments to public office. The Governor and/or the FCO Minister may refuse to assent to any law passed in Parliament that is

• repugnant to or inconsistent with the Constitution (which read with the fundamental rights chapter and the good governance reservation is a wider power than may, at first sight, seem to be the case); or 
• repugnant to good government; or
• incompatible with international obligations (i.e. EU Laws and treaty obligations).

Lastly but importantly HMG retains full legislative powers, including the power to amend or revoke the Constitution.

It is also a fact that the Treaty of Utrecht, which is now enshrined in the Despatch to the Constitution, circumscribes the ability to achieve independence. It provides that Gibraltar goes to Spain should it cease to be British. Independence is therefore not an option without Spain's acquiescence, which may be an unpalatable thought but a real one. Irrespective of the Treaty of Utrecht, independence without that consent is impossible. Gibraltar's membership of the EU is by reason of its ties with the UK. For Gibraltar to remain in the EU as an independent state would require Spain's approval. If Gibraltar were to leave the EU in order to achieve independence, the imperative for the frontier to remain open with free movement would disappear. Absent an open frontier Gibraltar's ability to remain an economically viable unit is grossly diminished or, in my view, destroyed.

How, in the bleak scenario that I have painted, can I believe that it is possible to advance on the road to self determination? Simple really, we have to navigate a path of good democratic governance within the constitutional bounds, thus making it difficult or impossible for any UK interference in our affairs. It will also help to reduce Spanish influence and argument. As confidence grows in our ability to maturely govern ourselves well, so will the UK's apprehension reduce and more freedom of government will be achieved. In the meantime changes in Spain and Europe will over time open up new avenues that can be pursued by future generations. The progress to fuller self determination will consequently be enhanced and the panorama will widen.

The main brake to out ability to achieve good democratic governance are the very democratic systemic failings that were, intentionally or unintentionally, built into the 2006 Constitution. A Constitution that, in blatant conflict of interest, our politicians conspired to craft to gather power to themselves, in a manner that concentrated it in the office of the Chief MInister. Two effects of this arrogation of power is that it allows external players, in our case Britain and Spain, to assess and so "manage" one person: the Chief Minister. Another is that it undermines the effectiveness of the exercise of that power because it is known to lack democratic credentials beyond a 4 yearly election based on a purposely stilted electoral system.

An overhaul of the parliamentary and electoral system such as will empower Parliament and make it more representative will ensure the strength of the democratic support for arguments marshaled by our politicians. Arguments with wider democratic credibility are far more difficult for external players to defeat. Any attempt to do so will be viewed as an authoritarian act incapable of justification on democratic arguments. This is not the case if the argument is essentially the argument of one individual who could more easily be accused of acting in contravention of the constitutional requirement of good governance, especially if the Rule of Law is not strictly adhered to. In those circumstances interference from external players is more easily justifiable. Also the "management" or "manipulation" of one individual, the Chief Minister in whom power is presently concentrated,  is also more feasible, whether by argument, incentive, persuasion or coercion.

In brief, my argument is that advances in self determination are more achievable by democratic means, evolution as opposed to revolution and patiently waiting for developments within the EU. It is not achievable by forcing the pace of time within a negotiation involving Britain and Spain. It is unlikely that Spain will change its attitude to advance our quest. Our advantage over Spain is ingrained within international law, namely that sovereignty was ceded by Spain to Britain under the Treaty of Utrecht. This treaty is respected and recognised by Spain, albeit reluctantly. Spain seeks a return by negotiated agreement, so faced with Britain's well-known promise to us, it has the difficult, if not impossible, task of changing public opinion in Gibraltar. All in all let us be ourselves, let us put our democratic house in order, let us debate maturely on substance (both in Parliament and out of it), let us leave emotion or hatred out of the equation of politics, and let us convince each other, by rational argument, right and wrong paths to follow. This slow road will achieve progress. It is these arguments that convinced me not to join the SDGG at its first and inaugural meeting, to which I was invited, many years ago.