Thursday, 15 September 2011

Blurring of the Separation of Power: Some Further Observations

Tomorrow is the Ceremonial Opening of the Legal Year. It is apt, therefore, that the theme of this blog should be on a subject with a jurisdrudential bent. Maintaining the central role of the judiciary is an essential plank of any free society and of the upholding of democratic principles. Central to the ability to do so is the separation of powers. One major element of such separation is the existence of an independent and impartial judiciary; importantly both as a substantive reality but also in terms of perception. An independent legal profession is closely connected also with the ability to access justice. It is the subject of the separation of powers that I touch on again but from a slightly different perspective.

On the 1st November 2009 the Constitution (Declaration of Compatibility) Act 2009 (the "Act") was deemed to come into effect. This Act, promoted and passed in Parliament by the GSD Government, authorised the Chief Minister or any other Minister, so authorised by the Chief Minister, to seek declarations from the Supreme Court of Gibraltar on whether any law or Bill or any part of any such instrument is within or without the provisions of the Constitution. It is my view that this Act should be repealed immediately for the reasons I will now give

I have made in the recent past several criticisms of this Act. These criticisms have been brought to mind again by a passage that I read in the late Lord Bingham's book "The Rule of Law", which was recently published by Penguin books. Lord Bingham, for non-lawyers who are unlikely to know, has been described as "... the most eminent of [the UK's]  judges...". He  was recently successively Master of the Rolls, Lord Chief Justice of England and Wales and Senior Law Lord of the United Kingdom. Lord Bingham's views on this subject, as contained in his book, are necessarily given from his perspective as a very senior judge. They are, in my view, the other side of the coin to the political perspective from which I made my critiicisms of the Act in Llanito World. Therefore, before I refer you to Lord Bingham's passage, I will remind the reader of the main thrust of my criticisms. These criticisms were made in the context of what has become to be known as the "gay age of consent case".

On the 28th March 2010 in my blog entitled "Age of Consent, Gay Rights and Government" ( I wrote:

"The judiciary applies laws it does not propose, sponsor or make them. It does not decide policy, that is the responsibility of governments. If a government ... seeks to hide behind the judiciary before passing what they perceive to be unpopular laws, that it has a legal obligation to pass, it is cowardice"

On the the 31st march 2010 in my blog entitled "Gay Rights, Direct Rule and a Government in Crisis?" ( I wrote:

"The compulsion to vote to end discrimination does not arise from any declaration made by the Supreme Court; that is simply a statement of existing law. It arises by the clear and unequivocal reality of the law ... The right path is not to misspend our money on a vauous crusade seeking to be told by the Supreme Court what is so widely known already."

On the 10th April 2011 in my blog entitled "Age of Consent- Sense and Independence" ( I wrote:

"One political debate revolves around the government using the courts to overcome politically sensitive debate and controversy ...This question arises because the litigation was brought to Court by the executive arm of government in the guise of the Chief Minister and the Attorney General.  ... Recourse to a judicial decision ... should only have been necessary if somone's rights had been transgressed."

Let us now look at what Lord Bingham wrote relating:

"... to a legislative proposal made in Britain in 1928 which, would if enacted, have permitted a Minister, if it appeared to him that a substantial question of law had arisen, to submit the question to the High Court, which, after hearing such parties as it thought proper, would give its opinion on the question. The proposal was the subject of a sustained attack by the judicial members of the House of Lords. The thrust of the criticism. was expressed by one judge (Lord Merrivale), who said ' it is no part of the business of Her Majesty's judges, and never has been part of their business, at any rate since the Act of Settlement, to have any advisory concern in the acts of the Administration. The vice in the proposal is not hard to see. If judges, almost certainly on hypothetical facts, advise the government that a certain course of conduct would be lawful, they disable themselves from ruling on the question in an independent and impartial way when, in due course, a litigant, on real facts, challenges the lawfulness of the conduct'."

All in all the case to repeal the Act is overwhelming. Parliament should recognise this. It should act forthwith to repeal this law. The Act only serves to compromise the sacrosanct independence and impartiallity of the judiciary, through no fault of the judiciary. Also, it blurs the lines of responsibility and the separation of powers of and between each arm of government. Further, it transfers an obligation that is that of the legislature to the judiciary. This transfer of functions is so clearly something that is intrinsically wrong.

What this Act also exemplifies is the need for a wider debate on this type of legislative proposal than that which the present make up of Parliament permits. The lack of sufficient separation of powers between the executive and the legislature, together with the abscence of a second house of Parliament, results in a narrowing of the participants in the debate. This increases the odds of legislative mistakes being made. It is not that I  advocate the creation of a second house of Parliament (god forbid!). I do continue, however, to advocate a rethink of how our Parliament is presently constituted to widen the knowledge and experience available in the legislative process and to  increase accountability.


  1. Guiri says;

    The unconstutitonality of s3(3) is plain, as is its inconsistency with even the most basic understanding of the rule of law. But Bingham's book is a useful reminder of why the rest of the Act is so objectionable. The remainder of the Act is inconsistent with the rule of law, but is it compatible with the Gib Constitution? Perhaps the answer can be found by asking this question; is the Supreme Court empowered to issue advisory opinions? s60(1) of the Constitution gives it a broad power, but does that extend to the issuing of advisory opinions in the absence of an express constitutional authority to do so? Without having researched the matter, I am aware that the US Supreme Court does not issue advisory opinions, and that although the Irish Supreme Court does (on reference from the President), I believe it has express constitutional authority to do so. That indicates that the Gib Supreme Court does not have the power to issue advisory opinions (and judgment that does not affect the validity of thing adjudicated upon can only be so described).

  2. The Chief Justice made a binding declaration under the Gibraltar Constitution and avoided section 3 (3) of the Act.

  3. Anonymous at 01:12

    You miss the point. The point is one of locus standi or having the necessary pre-requisites to bring a Claim for a Declaration at all. The Constitution provides:
    "If any person alleges that any of the foregoing provisions of this Chapter has
    been, is being or is likely to be contravened in relation to him, then, without prejudice
    to any other action with respect to the same matter that is lawfully available, that
    person may apply to the Supreme Court for redress."

    No provision was being contravened in relation to the Chief Minister or the Attorney-General so the Supreme Court was acting on the jurosdiction granted by the Act.

    The question is, can an Act of a Parliament established under the 2006 Constitution, which is a supreme law, enlarge a jurisdiction that was not granted by that higher law to the Suopreme Court? The pouint was not argued ...

  4. Robert

    Apologies for digressing but I can not help commenting on Mr Picardo's press release as published in today's Chronicle.

    Firstly, I wonder whether he has any idea of the cost of his promised Redefinition of Gibraltar politics.

    Secondly, he states that:-

    "Among my radical plans is the appointment of an Independent Commission to report on all aspects of the electoral and parliamentary system in Gibraltar".

    Question: Where on earth is he going to find a competent Independent Commission from within our limited population. What is more, once the IP reports, what would happen next?

    Please consider the questions as rhetorical.

  5. L.E.F. says,

    Trying to put into pespective, to what is achievable or financially viable, I would any day of the week propose parliamentary reform and more democracy in the way we govern ourselves to any enlargement of the airport ,based totally on spin and visions.

    I wonder whether anon: 20.33 has any idea of the cost of the airport vision imposed on us Llanitos?
    If we cannot understand or comprehend an improvement in the way we govern ourselves and yet can understand a major investment, which at the same time is indebting us as a people ,£100 million plus, what chance do we have of seeing us succeed in what really matters.

    None whatsoever.

    If we cannot look after ourselves and govern ourselves in a correct and democratic manner what chance do we have of evolving as a people?

    If we cannot assume the responsibilities and costs of being a mature people,maybe we should just give in and become Spanish.

    Maybe we are more Spanish at heart than what we think? There is no problem in accepting the Spanish way of life, if that is what we truly want.

    That will be our choice.

    In the meantime, please do not anger us Llanitos who are already fuming at the uncontrollable waste of our money on party politics ,by questioning the cost of what is a valid and much needed proposal for all us Gibraltarians. Regardless of party affiliations

    It seems that nowadays the culture of fine dining with langostinos and good wine might be more appealing than calentita, and that we(Us Llanitos) are just the aperitif.

    Good government and transparent democratic values are the essence to us Llanitos evolving as a people.

    Not millions on pharaonic dreams,with us the taxpayer paying the £50 million plus infrastructure,another £30 or is it £40 or is it £50 million on roadworks, tunnels ,consultants and soothsayers.

    Give us Lllanitos clear and transparent democracy,as promised way back in 1996 by the GSD, and the rest will follow.

    Money will either make us or break us as a people. Money or avarice is the root of all evil.

    Gibraltar Free

  6. L.E.F.

    It is not up to me to know the cost and affordability of any Government's tangible investment. I have, however, read the transcript of the CM's Budget Speech thoroughly and I, like so many outside observers find nothing to be alarmed about. Those observers, off course, include the F&CO/NAO overseers.

    How you can compare the cost of an asset, as is the case of the air terminal that will benefit future generations that will soon forgot or will shortly have no interest in how much it cost with the ongoing costs of The Citizens Charter, Freedom of Information etc is beyond me.

    Since you are so concerned about the Spanish threat I would also question Mr Picardo on whether he is aware of the "cost" of enabling any agent of the Spanish Government to obtain any information from any:-

    Government departments and local assemblies
    Local authorities and councils
    Non-departmental public bodies, committees and advisory bodies
    The police

    And less importantly: Health trusts, hospitals and doctors’ surgeries
    Schools, colleges and universities
    Publicly funded museums

    Is Mr Picardo aware that in order to make a Freedom of Information Act fully functional everyone can make a request for information and that there are no restrictions on age, nationality, or where the petitioner lives?

  7. What is clear is that it is Llanito World that has been driving the agenda for reform, a theme that has only recently been picked up by the main political parties.

    A key plank of that agenda is transparency. The Government at last this year agreed to publish the salaries (only basic salary figures, not total remuneration, but better than nothing I suppose) of public officials (GEA, GDC, GRA etc) - in addition to those of civil servants - in its publicly-available 'Approved GoG Estimates of Revenue and Expenditure' annual publication. But it is still not publishing the remuneration packages (salaries plus parliamentary allowances) of Ministers.

    One can estimate that Ministers earn close to £100,000 and that the Chief Minister must now be earning close to David Cameron's salary of £140,000. That may or may not represent a fair wage - but why should taxpayers have to try and guess? Will any of the parties make a manifesto commitment to publish Ministers' total remuneration packages i.e. basic salary plus parliamentary allowance?

  8. Guiri needs to take a holiday / get a life. Rarely have I read a denser pile of mumbo jumbo. This sort of thing gives the legal profession a bad name among people who are not loco standi or whetever you call it. Come down to earth boys or see a shrink. With warm Regards, Anon.

  9. Fabian Picardo has thrown the gauntlet to GBC. A debate of the state of Gibraltar's democracy needs to be had with Peter Caruana as soon as possible. Although he has not got a seat in parliament Keith Azopardi must also be invited as should other influential political outsiders like Peter Montegriffo, Carlos Gomez and Maurice Xiberras in order to allow much needed balance to the debate so that it does not descend into a sterile pre-election circus. Let us see if GBC finally rises to the occasion.

  10. Anon@19:24

    Since any reforms could only be enacted after the next election, I believe that any meaningful live TV debate should be held after the next bunch of parliamentarians have settled down.

    Any debate held now will inevitably descend into a sterile pre-election circus regardless of whether the additional participants that you refer to are invited and accept or not.

    Meanwhile, I am happy to read and digest, in my own time, the press releases and party manifesto commitments on reforms as and when they are published.

    The devil, which is usually in the detail, is much easier to spot in the printed page rather than in the spoken word accompanied by an image.

  11. I do not agree with anon @ 0858. I want to have explanations of politicians ideas of reform tested BEFORE the election so that I can be best informed as to how to vote. Traditionally Peter Caruana has avoided open debates so I can understand the GSD wanting to avoid his ideas being questioned live something that of course cannot be done if ideas are in a manifesto. I also have to disagree with him about the people mentioned by Anon 1924. All 3 would add value to a debate which would make for excellent TV. My only worry is whether GBC could come up with someone who could make the debate a success. You know not the sort of person who says "I have to stop you there" mid point but allows some rambling speech to go on and on and someone who can stand up to the super egos of Fabian and Peter and not worry about promotion prospects in the forthcoming GBC review :)

  12. Anon@09:28

    The parties' ideas on parliamentary reforms are already being tested, particularly after the debate in Parliament and subsequent press releases on the subject.

    How can you say that Peter Caruana has traditionally avoided "open debates". Don't you mean TV debates? He does thrive on parliamentary debates just as you would expect of any parliamentarian.

    Like you I want to be well informed before I decide on who to vote for but I would not consider the best live TV performance on just the one issue of any significant help to me.

    Nevertheless, I do agree with you it would make excellent TV if well handled.

  13. I suspect that Peter Caruana would not be as good out of his turf in parliament and in the presence of people other than Fabian Picardo who he knows how to handle. I expect that he will avoid a debate. I cannot recall Keith being in any major debate and I wonder how he would fare against his old boss. Whoever thought of Montegriffo Gomez and Xiberras as members of a panel may have got it right. They each come from completely different angles and could ensure the success of the debate. If Caruana bottles out maybe he should send Danny Feetham but then I suppose the other party leaders would send their seconds Garcia (or Licudi) and Cruz but that would still be better than nothing and Nick Cruz is a likely to provide added excitement.

  14. Anon on 17th@18:24

    We could also hold a time and motion study on the Honourable Members of the Opposition so that the taxpayer can ascertain the cost per hour of their service to the community.