There are contradictions in the air, both about work continuing to reach an EU treaty over Gibraltar, and on the inaccurate assertion that the Gibraltar Government has constitutional responsibility for immigration, which, apparently, is relevant in the eventuality of no EU treaty being agreed.
On the first, EU delay to the start of negotiations is the order of the day, despite boasts that “work continues constructively”.
On the second the position is not as clear as is asserted. The Governor has certain constitutional responsibilities, and over which inroads may have been made by successive Governors signing off laws passed in Parliament, in contravention of the constitutionally allocated powers.
NEGOTIATIONS AWAIT AN EU MANDATE.
The Deputy Chief Minister, Joseph Garcia, is reported as saying, about frontier arrangements with the EU following Brexit, that, “Work continues constructively for an agreement and plans are made, at the same time to cover the possibility of no agreement.” He said that in the context of the visit by the UK Home Office Border Force.
That Force is here to advise on arrangements for frontier management, were there to be no deal with the EU concerning Gibraltar.
Mr. Garcia’s statement is sharply contradicted by the stark fact that no EU negotiating mandate over Gibraltar is yet forthcoming. That is the position, despite promises, last month, that it was imminent.
The result is that negotiations cannot commence yet; without negotiations there can be little ‘work’. The position is worsened in the context that the UK-Gibraltar negotiating mandate was published two months ago.
So, which is it? Does ‘work’, as Mr. Garcia say, continue, whilst we are in an impasse that does not allow negotiations to start? If so, who is involved in that ‘work’?
It seems that the reality, right now, is that we are stuck in an impasse, simply waiting for the EU to progress matters.
In the meantime, we all live in the hope that bridging measures will be ongoing until negotiations with the EU start. Again, there does not seem to be any official confirmation indicating that will be so.
Signs on the ground are that everything does not run smoothly at the frontier. There are many being asked to show their passports, which are stamped. The consequent queues and delays are obvious.
Is that a signal of what is likely to be a small element of what may come if no deal is reached, or if interim measures are not continued?
IMMIGRATION- A RESPONSIBILITY SHARED WITH THE GOVERNOR.
Our government is, of course, responsible for legislating on and the day to day running of immigration controls. Daily management is through the work of the Borders & Coastguard Agency.
However, to say that the government has constitutional responsibility to do so, ignores that it is split. Elements of this responsibility constitutionally remain and lie with the Governor.
Internal security matters are retained by the Governor, as are external affairs. Accordingly, to the extent that either of those are engaged in any immigration issue, the responsibility for them lies with the Governor, not the government.
That includes the power to legislate, subject to the Chief Minister being unwilling to promote the necessary laws in Parliament, and to the Governor having the approval of the Secretary of State for Foreign, Commonwealth and Development Affairs.
INROADS INTO GOVERNOR’S RESPONSIBILITIES?
It is peculiar that the Chief Minister, and not the office of Governor, in some of our laws, has been given the power to act in matters that engage the constitutional role and powers of the office of Governor, for example internal security. Internal security is in the constitutional remit of the office of the Governor.
Why then do Governors sign off on some laws giving executive powers to the Chief Minister on a matter of internal security. Should these not be retained by the office of Governor? Doing so, chips away into the constitutional role of the office of Governor, in contravention of the Constitution.
How much erosion of the clear division of powers between the Governor and Parliament is there in Gibraltar’s laws, following ‘sign off’ of acts of Parliament by Governors? Signing by a Governor of such Acts needs careful consideration. It should be done within the bounds prescribed by the Constitution if the separate roles of each part of the Executive is to be maintained.
The position in Gibraltar cannot be compared with that of Her Majesty in the UK. The Governor has certain constitutional responsibilities and obligations to consider and maintain.
THE CONSTITUTION NEEDS RESPECT.
The Constitution is an umbrella law that defines how we are governed. Disrespect for it, or its erosion, should not be tolerated by any party. If constitutional progress is wanted, then it should be achieved through discussion and amendment. A slow transfer of any powers through neglect or submission should not be allowed to happen.