What do we Vote for at an Election?

This headline may seem the silliest question that I have ever posed. The answer is simple right? We vote to elect Ministers. Inaccurate! we vote for a Chief Minister? Inaccurate! The consequence of what we vote for, which is Members of Parliament,  is to elect the executive arm of government i.e. the Ministers and a Chief Minister but that is not what primarily we vote for.

What then is it that the the system should deliver to us at an election? Simple really, to elect individual candidates into Parliament from amongst whom a government is formed, from amongst whom a Chief Minister emerges, who is the leader of the majority party in Parliament. Those who do not belong to the government benches join the opposition benches. The party on the opposition benches having the most seats becomes the official opposition from amongst whom there emerges a Leader of the Opposition, being the leader of that party, so we do not elect a Leader of the Opposition either.

Does the distinction that I make matter? I believe that it does because an understanding of this distinctions, in my view, will help voters to decide how and whom to vote for. The issue is one of emphasis. Gibraltar has a parliamentary system of government based on the Westminster model. The missing element in Gibraltar is that we do not have constituencies. In the UK voters elect an MP to represent them in Parliament. Although there is a party system and that pulls in electors both because of party and ideological reasons, there is also a more direct relationship with an individual person who becomes ones representative in Parliament.

The effect of this is twofold, theoretically (and it has happened) the possibility exists that persons who are earmarked for high ministerial office do not get elected into Parliament and so are excluded by the electorate from forming part of the executive arm of government. Additionally it results in the executive arm of government being chosen from amongst a large group of elected representatives being members of the party or coalition who have the majority in Parliament and so can form government. Those who are not chosen for ministerial office do not form part of the executive arm of government but become backbenchers.

It is these MPs, together with the opposition and cross-bench MPs (in the past the Liberal Democrats) who make up the check and balance in the legislature. It is these MPs who can defeat the executive arm of government. It may be rare. It may be that the whip system diminishes the chances of it happening. However, the possibility acts as a a brake. It has happened that governments have been defeated. This brake, together with the power of the House of Lords, does and has led to legislative amendment and withdrawal of both legislation and policies. The most recent example in the UK is the proposed health reforms that are now on hold for further debate and review.

In Gibraltar this does not happen. Not because the electoral system does not permit it but by the effect of the electoral system combined with voting habits that have been ingrained over the years through persuasion of voters  by politicians. The reality is that the block vote has been ingrained in us. We fail to analyse and evaluate individual candidates and vote for parties. The effect of his is, that a strong leader can manouvre himself into a position that he can put forward weak candidates, get them elected and reinforce the centralisation of power in the Chief Minister, thereby undermining democracy.

Peter Caruana has understood this over the years and used it very effectively to rule Gibraltar. The GSLP are now making enormous efforts to counteract this. First Fabian Picardo has spent time emphasising that he will engage in cabinet style government. Secondly, the GSLP seem to be gathering around themselves a stronger candidature than it has been able to gather together for a number of years. Two sound advances but not an institutionalised change in the electoral or parliamentary system. It is a change that can be and time may well reverse, especially as gathering stronger candidates becomes more feasible for the party which is perceived by potential candidates to stand a better chance of election at any given election.

The solution is, as I have said over and over again, for there to be electoral and parliamentary reform. I have made suggestions. the GSD Government have published proposals that I have already said do not go far enough. The GSD Government have asked the GSLP/liberal Opposition to put forward suggestions. The GSD Government have indicated a desire to enact and implement the reforms before the forthcoming election. To date the GSLP/Liberal Opposition has not engaged in constructive and substantive debate on the issue.

I hope this is not because the GSLP/Liberal Opposition considers itself poised for an election win and so does not want the inconvenience of systemic changes that introduce democratic counterbalances that past governments have not had to work within. In short that they do not want to create a rod for their own backs. Whatever the reforms that come about might be, they are needed and let cynicism not stand in their way. What I ask is that the reforms should provide, in a different way because, for obvious reasons, they cannot be provided in Gibraltar in the same fashion, the democratic safeguards that exist in the Westminster Parliament that our constitution has tried to emulate but only suceeded partially in doing so. I also ask that individual electors look at and vote for individuals, irrespective of party allegiances, who will be good parliamentarians and hold the executive arm of government to account.

Government Control of Information is Anti-Democratic

It has often been said that information is power. The corollary is also true. The control and retention of information and unnecessary secrecy assists those in power to remain in power. In many western democracies, certainly in the UK and the USA, access to information has been freed up by law. In the UK there are primarily two pieces of legislation that allow the public to gain information held by public authorities. Personal data can be obtained under the authority of the Data Protection Act. Information from public bodies can be obtained under the authority of the Freedom of Information Act.

There is no Freedom of Information Act in Gibraltar. There is a Data Protection Act in Gibraltar. The lack of a Freedom of Information Act is a further democratic deficit that exists in Gibraltar. It leaves the government, public service and other public authorities free to handle and manage information in a manner best suited to protect itself rather than the public, which it serves. This can result in manipulation of information that that can lead to a regressive state. It is a secretive system of government that does not sit well in a democracy and in this age of communication technology.

What is worse is a cynical introduction of legislation intended to undo lack of information and secrecy. I have complained in my previous article that the GSD proposals for parliamentary reform (none of it is electoral reform although new press releases disingenuously refers to them as such) are lacking; not just because of their content, but also because on reading the detail, they give with one hand and take away with the other. This is exactly what the GSD Government has done when it enacted the Data Protection Act, specifically as regards the manner in which requests for information for personal data are handled.

The Data Protection Commissioner ("Commissioner"), who administers the Data Protection Act, is the Gibraltar Regulatory Authority ("GRA"). This is a grand sounding organisation giving the impression of independence redolent of checks and balances. The reality is very diffferent, whilst it is described as a corporation sole, it is not a corporation at all in the sense that it does not have a commission or board or council to govern it independently or independent non-executive directors. What it is , essentially, is one person, presently Paul Canessa, who is appointed and described as the "Chief Executive Officer" ("CEO"). The CEO is empowered to conduct the affairs of the GRA and to exercise and perform such powers, duties as may be vested in the GRA.

Let us analyse the GRA. The CEO (and so the GRA) is appointed by the Chief Minister.  The CEO can be removed, on appropriate grounds (but not subject to any system of statutory appeal so there would only be resort to the expensive remedy of Judicial Review in the Supreme Court against removal) by the Chief Minister. Funding of the GRA comes from Parliament. I will repeat my constant criticism that the Government benches of and so Parliament in Gibraltar is controlled by the executive arm of government and so, in the end, the Chief Minister. In addition the GRA has to have regard, under the Act, to government policy (we all know that means the policy of the Chief Minister). We should, however, be thankful for small mercies, no member of Parliament can be the GRA. It is this that the Act establishing it considers provides "independence".

The whole point of having a Data Protection Act under which personal data can be obtained from public bodies is that one should have the right or discretion to obtain information on request exercised by an independent body. I wonder how independent the GRA can be seen to be in light of the peculiarities that I have highlighted? One should remember that what is important is perception as well as reality. It is not enough to claim independence if, objectively analysed, the system has glaring deficiencies indicative that such independence can be compromised. The archetypal example of this is the length that established international organisations and rules go to ensure objective safeguards intended to guarantee the independence of the judiciary, which are in large measure included in our own Constitution.

The system can be said to have failed if anyone is left with the feeling that he has been let down in the application of the Data Protection Act. I am in that position on the subject of the refusal by the Commissioner (the GRA) to provide me with a copy of the letter about me that the Chief Minister wrote to the Chairman of the Financial Services Commissioner.

Initially the Commissioner  refused to admit the existence of the letter at all. I pointed out to him that the Chairman of the FSC had admitted to me that the letter existed. The Chairman had indicated to me also that the Chief Minister's letter was critical of me.  In reply to a suggestion by me, at a social gathering, that I may not seek re-appointment to the FSC for a third term, he replied words to the effect that if I saw the contents of the Chief Minister's letter this was probably a wise decision.  Only then was the Commissioner forced to admit to its existence. He has also been forced to admit that it is personal data and so subject to disclosure under the Data Protection Act. His admission takes the form that he justifies non-disclosure under an exemption, for the exemption to apply the letter must constitute personal data.  I consider and have pointed out to him that the exemption he relies on is inapplicable. He has not answered my arguments and my last letter to the Commissioner remains unanswered, as does my request to the Chief Minister for him to give me a copy of this letter.

You may ask why I have not pursued the issue further, if I consider the reasons for refusal to be inappropriate? The answer is simple first, non-disclosure already says a lot and secondly the recourse against such a decision is an appeal to the Magistrates Court and thereafter to the Supreme Court. As a lawyer I know the costs in time (neither of which I am prepared to waste) and money and risk in costs of doing that. I am not prepared to risk my hard earned cash on taking such steps, when what is happening, the refusal of disclosure, so obviously leads to suspicion of what the contents of the Chief Minister's letter might be. The cost in itself, I add quickly, is, through no fault of the court service or the judiciary, another, in my opinion, a barrier, to access by citizens to information and personal data.

In the UK the equivalent body that administers both the Data Protection Act and the Freedom of Information Act is an objectively independent Information Commissioner. There is also a Tribunal to which one can appeal against decisions made by him. Appeals to Tribunals is a much cheaper and more accessible process. It is only after the Tribunal has determined an appeal that the more complex and expensive court system comes into play. There is an appeal on points of law to the courts from the Tribunal. All in all a more  independent, transparent and less costly system by which citizens can obtain personal data (under the UK's Data Protection Act) and wider information (under the UK's Freedom of Information Act) should there be an initial refusal by the Information Commissioner.

The moral of the story is that, in Gibraltar, it is not enough to have introduced the Data Protection Act. It is not enough to introduce, in the future, the Freedom of Information Act. It is essential to introduce it and change the procedure under the Data Protection Act. Changed in a a manner that they work and are seen to work independently, transparently and cheaply. They should be seen thus both at the initial stage before the Commissioner (who should be capable of being seen as objectively independent) and with a cheap first appeal to an administrative tribunal with simple procedures. This will make these Acts truly effective to provide a proper democratic check and balance on the government and the administration.

It is time that our politicians to stop treating the electorate with disdain and attributed to it a modicum of intelligence. Stop giving with one hand and taking away with the other, and be fair and reasonable. There is a moment when people react. We may not have reached it in Gibraltar but it is being reached in  more and more countries, not only in the Middle East and North Africa but also in Europe, have a look at Greece and Spain.

Give Us Substance not Form on Reforms

Let us get back to politics and issues and thank god for small mercies. The GSD have announced support for Parliamentary reforms. It has done so, it says, as a result of the enthusiasm shown by the new Leader of the Opposition and also because the Chief Minister, now, also sees greater consensus outside Parliament for reform.

The unfortunate initial response from the GSLP/Liberals is to attack the GSD proposals on form and not substance by engaging in a "blame game" argument. The alliance is right in that a Select Committee of Parliament was established by the Government two and a half years ago and the Chief Minister has not convened a second meeting of it. The alliance is also right that it is the responsibility of those in government to make initial proposals, especially as reforms were a manifesto promise of the GSD government. The alliance is also right that from a Select Committee with equal numbers of Government and Opposition now the GSD Government have moved the goalposts. The GSD Government have instead proposed a Committee of the whole of Parliament. This would give the Government an inbuilt majority if implemented but, worse still, makes the process rather unwieldy and unmanageable.

The result will likely be that either the Government pushes through its views or no agreement is reached. If the Government pushes through its views those reforms that require legislation are doomed to failure because the 2006 Constitution requires this type of reforms to be passed with a two thirds majority. The Opposition will likely vote against in these circumstances. The effect of this would be to veto any reforms, leaving us where we started with the GSD Government blaming the alliance Opposition for the lack of any democratic advance. This would be political maneuvering and cynicism of the highest degree. I would hope that this is not what happens. I hope that the alliance Opposition will engage on the substance despite this rather negative start from both sides of Parliament and the rather sour and bitter atmosphere presently pervading the relations between both Parliamentary parties.

A small positive step forward is that the GSD Government has now published a draft motion setting out its proposed reforms. Some are good, to a limited degree, and some do not go far enough in order to deliver more democracy. As is usual the devil is in the detail. The Chief Minister is very good at the detail, as we all know.

One proposal is that each Minister will have to answer questions in Parliament once a month and the Chief Minister fortnightly. This is a massive advance. Aside from increasing accountability question time will become  more focussed on the distinct responsibility of individual ministerial but also the press will be given an opportunity to report better and in more detail. Presently there are so many questions at each session of Parliament that the answers get lost resulting in the public not becoming aware of relevant and important issues. The rule limiting the duration of such sessions and prohibiting the asking of statistical questions is the detail that diminishes the effect of this reform. What is a "statistical question" is one problem that will be complicated to define and determine and could greatly reduce the effectiveness of this change.

A standing General Purposes Committee will also increase accountability. It will be chaired by an Opposition MP with power to summons Ministers, officials and others. This picks up on one of my suggestions. However, its effectiveness will much depend on the "... procedures and processes to be approved by Parliament" in which, as we all know the GSD Government has a majority. Much will further depend on the composition of this committee, which will " ... be variable for different meetings depending on the subject matter ..." and how and who will decide what that composition will be.

I was reminded recently that Parliament, or the House of Assembly, as it then was, always used to have a very effective, incisive and inquisitive Public Accounts Committee. Mr Bossano's GSLP Government abolished it . The GSD Government conveniently forgot to introduce it when it gained power in 1996. The reintroduction of this Committee to quiz Ministers and Officials on all financial expenditure should be considered. It is not  one of the reforms suggested by the GSD Government.

The newly suggested ability for Opposition MPs to bring Motions before Parliament monthly is toothless. The motion can always be defeated by the inbuilt Government majority. This is a sheer gimmick.

Reform of Standing Orders can happen forthwith so this is just a fleshless suggestion included to pad out lightweight proposals.

I believe that none of the above reforms require any legislative change or authority. I understand that they are entirely within the hands of the Leader of the House, who is the Chief Minister, under current Standing Orders to introduce tomorrow. Why does he just not do it? Not that it would be enough.

The suggestion to increase the size of Parliament and allow for backbenchers is a more substantive reform. This would require legislation to introduce and implement it. In the absence of any concrete proposals as to how many or how they would be elected, this reform could be purely cosmetic. There are no such detailed proposals included in the draft motion. Enlargement of Parliament without electoral reforms that allow "Independents" to be elected will mean that again this change will be cosmetic and make no real inroads into the democratic deficit.

All in all a major disappointment but it is a start. I beg the GSD Government not to take the electorate for a ride on the subject of these reforms. We may not be as intelligent and clever as you but we are not stupid. I urge the GSLP/Liberals not to engage in any more procedural wrangling and accusations of gimmickry. Let bygones be bygones. Seize the opportunity and put forward some serious proposals for reform. Show the proposed GSD reforms up for what they are. Show the electorate your true democratic and reforming zeal. Make a difference to improve Gibraltar by making substantive proposals . This will ensure that there is clear blue water between your policies for reform and those of the GSD. It will not harm your electoral chances. It will enhance them. The GSD keep on giving you popular ground that you can move into, do not lose the opportunity to fill this vacuum.

A Dark and Cloudy Dawn but with a Small Hope of a Ray Of Light

In my last post I talked of a new dawn. In the first paragraph, I gave examples of a few positive signs but I am not so naive, as someone suggested, as not to know that there are also some dark clouds hiding the rising sun. In my post "Depersonlised Comments to Improve this Blog", posted on the 1st May 2011, I anticipated the controversy that the electorate will be faced with at the forthcoming election.

I wrote : "My personal sadness is that the risks of the personal circumstances of anyone elected to the office of  Chief Minister having an adverse effect on Gibraltar are heightened by the democratic deficit that exists in Gibraltar. The very fact that our electoral system results in the election of a presidential style Chief Minister magnifies that risk, should the person offering himself or herself for election to that office be found to be wanting. If the electoral system was reformed to elect a truly representative government from amongst whom a Chief Minister would emerge, the risk would be somewhat diluted."

The essence of my point is that those who stand for election need to carefully consider their respective personal circumstances and ensure that these will not impact on the reputation of Gibraltar. I cast no stone but already we have the challenger to the post of "president" of Gibraltar being questioned in his first interview on GBC about certain professional issues that he faces. I do not castigate GBC for bringing these issues to the fore. I applaud Gerard Teuma for his incisive and hard hitting interview. He has set a new standard for interviews on GBC. GBC now needs to maintain that style and standard for every interviewee, whatever his office or post. GBC's much criticised independence and credibility, going forward, depends on it doing so.

The electorate has the right to know about anything that might impact on the ability of any candidate to properly undertake his or her duties as an elected representative, especially if the candidate is putting himself forward as a potential Chief Minister. The media has a responsibility to inform. In the same post from which I have already quoted above  I also wrote "The present electoral system converts the 10 votes that each voter has into one vote for a president who is known as the Chief Minister. This fact alone militates to comparisons  being made as between one potential candidate for the post of Chief Minister and another and criticisms of each." This is exactly what has happened. Mr Picardo was asked about certain professional issues that he faces; in part defence he retorted by making certain assertions against Triay & Triay, pertaining to a period during which Peter Caruana was a partner.

Unfortunately for Mr Picardo there is no comparison between the cases he was quizzed about and the matter that he alluded to relating to Triay & Triay and so to the Chief Minister. I fully stand behind, support and repeat the statement, issued by No 6, that Mr Picardo's assertions on the Necora case are untrue and false. The circumstances of where Mr Picardo finds himself professionally are completely different and the cases involving him are still ongoing. He also said that Triay & Triay lost its libel case against a newspaper in Spain. This statement by Mr Picardo is not accurate.  The Necora case  involved the arrest in Spain of a Gibraltar lawyer who had no connection and had never had any connection with Triay & Triay. Mr Picardo should, as a lawyer himself, know that repeating statements that have been already found to be defamatory is itself defamation.

The theory that I have been preaching for a long time is that the confrontational style of politics that play out in Gibraltar do not improve Gibraltar; that this style is partly caused by the electoral and parliamentary system that Gibraltar has; that, consequently, one route by which it can be alleviated is by electoral and parliamentary reform. It is a theory that most politicians have discussed, accepted and consequently promised reforms to change the system for at least the last 35 years, which is the time that I have been politically aware in Gibraltar. None have progressed the issue, save that, thankfully, the 2006 Constitution was drafted in manner to allow for such changes to be enacted by our Parliament. I would have preferred these matters to have been resolved and included in the Constitution, leaving within the Constitution sufficient flexibility for future improvements, but it was not to be. 

Now, at long last, we have the GSD Government inviting the GSLP Opposition to achieve reforms as a matter of urgency. Now we also have the GSD Government publishing an outline of its proposals and inviting the GSLP to make suggestions. This may be a ray of light in an otherwise cloudy dawn. I know that there are skeptics that do not believe the reforms will actually come about. I am optimistic and refuse to be a skeptic on this issue. I am not prepared to believe that the two mainstream parties will be so cynical as not to progress the promised reforms. The electoral reaction to that would be too vociferous. The loss of trust and confidence in the system of government too great. The repercussions serious, in this age of internet freedom and communication.

Time will tell whether the GSD proposals go far enough. They are certainly a start. They do not deal as yet with details, such as the electoral system or the issue of  direct representation of people in Parliament. The GSLP may wish to make suggestions in this regard. We will see. I hope and trust that the issue will be fully aired and debated and that the reforms will be robustly democratic whilst balancing the need for the ability to govern not to be seriously compromised. However, if reforms are to be implemented there must be legislation before the next election, otherwise the window of opportunity will close.

One important facet of democratic government is inclusion. Inclusion helps to avoid confrontation. It helps to attract more participants. It will help to ensure that a void in government does not result. It will ameliorate the possibility of scandal affecting Gibraltar adversely. Gibraltar's success and administrative and territorial integrity are best safeguarded by ensuring good governance. The chances of good governance are enhanced by the greater participation of people and also by systemic checks and balances. Any reforms should bear these considerations in mind.

Reforms should enable more people to involve themselves in politics at an earlier age, encouraging candidates to get involved at an early age will ensure that experience can be gained and continuity of government secured. I would hope that reforms would also encourage consensus in the manner in which Gibraltar is governed. All existing parties adhere, in the main, to the centre ground of politics. It should not be difficult after any election for those elected to join together to govern in a government of unity. I do not have the depth of knowledge of political theory to design a system that will deliver these ideals but it cannot be beyond the wit of those learned in this subject to be consulted to design a custom made system to work in a place like Gibraltar for its best advantage. I urge our politicians to seek advice. There is no shame in that.

How can the electorate help? Easy, do not block vote for parties. Even though I have decided not to stand for election, for the present, the strategy that I have proposed in the past still stands. Use your 10 votes wisely. Look at each individual candidate. Analyse his or her character. Decide on his or her salient political characteristics;  believe me, in both parties there are those who lean more to the centre right and those who lean more to the centre left. Try and understand who each is as an individual. Then vote for those you consider to be the best and most suitable candidates, ignoring the party acronyms beside their respective names. If no party gains a majority so be it. Let them sit round tables behind closed doors in smoke filled rooms (possibly not smoked filled any more) and negotiate a package of policies and measures that will benefit Gibraltar. They know they can do it just force them into it. Gibraltar will be radically changed for ever and for the better if this is achieved.