26th March 2024
The controversial Inquiries Act 2024 became law on Tuesday after it was granted Royal assent by the Governor, Vice Admiral Sir David Steel, and published in the official Gibraltar Gazette.
The Act became law in the wake of intense exchanges in Parliament in recent days in which the Opposition criticised the move and voiced concern it would give powers to the Government to “sidestep” the McGrail Inquiry chairman and restrict public access to information or hearings on public interest grounds.
The Gibraltar Government has insisted repeatedly that the new legislation will benefit all inquiry participants and is designed “update and modernise” Gibraltar’s previous inquiries law, which dated back to 1888.
The new law largely mirrors UK legislation but includes key differences including transitional provisions that mean it applies to the McGrail Inquiry.
At the centre of the controversy is a power allowing the Government to issue a notice restricting public access to information which it believes, if discussed openly, could lead to a risk of death or injury, damage caused by disclosure of commercially sensitive information, or damage to Gibraltar’s national security, international relations or economic interests.
The Government has given an undertaking that this power would only be exercised in the wider public interest, and only after prior resolution of the Cabinet.
Additionally, it would be the Minister for Justice who would exercise the power if deemed necessary, not the Chief Minister.
The Government stressed too that should the power be exercised, any decision to restrict information from the public in the inquiry – though not from the chairman or lawyers - could be challenged by judicial review in the Supreme Court.
But the criticism from the Opposition has been fierce and echoed by international observers including the respected anti-corruption watchdog Transparency International.
The Opposition noted that Sir Peter Openshaw, the McGrail Inquiry chairman, last December rejected an application from lawyers for the Government parties to restrict disclosure of certain information relating to Operation Delhi, a police operation investigating allegations of hacking or sabotage of the National Security Centralised Intelligence System and alleged conspiracy to defraud the company that operated it.
It described the new law as “an ugly and unsophisticated power grab” just two weeks before the start of the McGrail Inquiry on April 8, adding that the Government parties – meaning the Chief Minister, the Attorney General, the then interim Governor and the Government itself – were “mired in conflicts”.
On Tuesday, the Leader of the Opposition, Keith Azopardi, met with the Governor accompanied by GSD MPs Roy Clinton and Damon Bossino to set out the Opposition’s concerns about the move.
The meeting had been scheduled for 10am but was changed to 4pm. News that the legislation had been given Royal assent came just before the meeting.
After his discussion with the Governor, Mr Azopardi released a copy of a letter which he handed to Sir David explaining his views on the new law and its timing ahead of the McGrail Inquiry.
“I appreciate that the Government have sought to portray this episode as driven by a wish to modernise this legislation,” Mr Azopardi wrote in the letter, whose contents he said reflected the views of all GSD MPs.
“Simply put the chronology of facts and participants point to a conflict of interests that deprive this sudden desire for reform of legitimacy.”
“Rather it is seen by many as a bid to bolster the Government and Chief Minister in the Inquiry and weaponize him in that process.”
“The effect of this new piece of legislation is to vest new and intrusive powers in the Government in circumstances where the Chief Minister has made plain he may exercise them in the very Inquiry within which serious allegations are raised of his conduct and that of the Government.”
“This will disturb the legal status quo which had vested those powers in the Chairman.”
Mr Azopardi said all the Government parties involved in the Inquiry were “fundamentally conflicted”, including the Office of the Governor given the role of the interim Governor in the events leading to the early retirement of former police Commissioner Ian McGrail.
“None of those core participants or conflicted parties should be perceived as taking steps that will affect the Inquiry process,” he said in the letter, adding that – as first reported by the Chronicle – Sir Peter Openshaw had confirmed he had not been consulted on the new law ahead of its publication.
If any powers under the new legislation were exercised by the Government before the McGrail Inquiry concluded its work, it would “undermine public confidence” in the process and would be seen by the GSD as “a very serious development”.
“That would simply make matters worse, deepen the perception that steps are being taken in political self-interest rather than the public interest and detrimentally affect Gibraltar’s interests and reputation,” Mr Azopardi wrote.
“There is a sense of real public outrage that this is happening.”
“This episode is in my mind a fundamental crossing of the Rubicon by this Government in a way that I have not experienced in the many years I have been involved in politics.”
“I regret to have to write to you in these terms. In 30 years in politics I cannot recall ever having written to a serving Governor in these terms but this is an issue of huge constitutional importance and the facts are grave.”
In presenting the legislation in Parliament last week, Chief Minister Fabian Picardo had rejected the suggestion of multiple conflicts of interest as “Alice in Wonderland stuff”, dismissing too claims that the new law was designed to benefit him.
He said he remained “very confident” that his position would be vindicated once all the evidence in the McGrail Inquiry had been aired.
And he added that while “transparency is fundamental”, all modern democratic governments had powers to restrict information if they felt it was in the wider interests of their respective constituents.
“Of course there are things which it is in the public interest should not be public,” he said at the time.
“That is not to hide something, in the pejorative sense.”
The McGrail Inquiry is tasked with probing the reasons and circumstances leading to the controversial early retirement in June 2020 of former police Commissioner Ian McGrail, after a 36-year career and halfway through his term in the top post at the Royal Gibraltar Police.
In preliminary hearings, Mr McGrail’s lawyers have alleged “misconduct and corruption” at the highest levels of government, insisting Mr McGrail was “muscled out” after being placed under huge pressure over the conduct of a live criminal investigation.
Those allegations were “denied and roundly rejected” by lawyers for the Government parties, who said Mr McGrail retired because he knew he had lost the confidence not just of the Chief Minister but, crucially, of the then Governor, who was the only person with the power to ask him to resign.
Last night, the McGrail Inquiry team published a factsheet on its website explaining in neutral terms the new law and the changes from the old legislation.
TOGETHER GIBRALTAR
Together Gibraltar also added its voice to the clamour of criticism surrounding the Inquiries Act 2024.
The party hosted a call with a UK academic specialised in inquiries - Dr Emma Ireton, Associate Professor of Law at Nottingham Trent - to discuss the potential impact of Gibraltar’s new legislation.
It had invited the Justice Minister to participate but he declined, TG said.
TG said the discussion made clear that while the UK Inquiries Act on which Gibraltar’s new law is modelled was “generally considered to provide a suitable framework”, there were concerns too about the extent of powers granted to ministers, or in Gibraltar’s case, the government.
Those powers, including provisions to restrict public access or withhold information from the public, “…have the potential to undermine the independence of a public inquiry and undermine trust and confidence in the process.”
“Gibraltarians are rightly concerned about the excessive powers this Act will grant the government, as well as the potential damage it could do to Gibraltar’s reputation and prosperity,” TG said in a statement.
According to TG, Dr Ireton explained the powers “to interfere with inquiries” had never been exercised in the UK, meaning there had been no collapse in public confidence in inquiries that must be independent and seen to be independent.
Additionally, the UK legislation is currently being reviewed by a House of Lords special committee precisely to address these very concerns.
“The independence of public inquiries should not be left to chance,” TG said.
“The fact that Gibraltar does not have many of the safeguards present in the UK raises serious concerns that the government will be able to act with impunity.”
TG said it would continue to monitor developments, adding: “We all have a duty to ensure that the government does not put Gibraltar at risk to save their own skin.”