*Proposed anti-corruption law fails miserably
*Chief Minister given all power so independence lacking from inception
*Other failings but Chief Minister’s excessive control needs changing first
*Anti-Corruption Authority entirely appointed by Chief Minister
*No constitutional safeguards as exist for judges and public officers
*Definition of corrupt conduct needs review but can be changed by CM anyway
*Chief Minister can restrict production of evidence
*Chief Minister can censor reports
*Chief Minister can restrict the giving of information and production of documents
*Internal and external security engaged so Governor has constitutional role to play
*Opposition has a huge task to perform
*Kafkaesque act worthy of a Monty Python sketch
CHIEF MINISTER’S DISPROPORTIONATE POWERS
The massive powers given to the Chief Minister [CM] is a huge and glaring deficiency of the recently published Anti-Corruption Authority Bill 2022 [Bill]. Any CM and all his/her Ministers are subject to investigation for corruption surely, so independence from the CM is a crucial ingredient. It is difficult to see what aspect of the intended legislation is not dominated by the office of CM.
Investigations against alleged corruption become impossible, or at least very difficult, if he/she sits at the top of the pile as CM. The Anti-Corruption Authority [Authority] immediately becomes tainted were a CM or even any of his/her Ministers to be alleged to be corrupt. The latter can seek the protection of their CM.
The proposed law fails in other areas, for example the Authority is not a prosecutorial one but must refer finalised investigations to the police for consideration and possible prosecution, but until that one (giving the CM so much power) is corrected, the other shortcomings need not be highlighted for the present. That is not to say they will not need correcting also. They most certainly will, but first fundamental distortions need to be put right before dealing with other important detail.
The legislative debate falls on the Opposition in Parliament, but constitutionally also on the Governor who is responsible for internal and external security.
CHIEF MINISTER’S POWER OF APPOINTMENT
An appointee of the CM will Chair the Authority, which will have four additional members. Those additional members will be appointed by the CM in consultation with the Leader of the Opposition [LoD]. The CM does not therefore have to have the agreement of the LoD. In addition, the CM alone can remove members of the Authority, if in his sole judgment certain factors are present.
The independence of the Authority must come into question immediately as no safeguard against political interference is included. Under the Gibraltar Constitution Order 2006 [Constitution] most posts requiring independence have substantial safeguards built into the system. It could be argued that even those are not sufficient but at least they exist and some, if not a large level, of protection and independence is institutionally built in.
MIISING CONSTITUTIONAL SAFEGUARDS
Independence is rightly safeguarded under the Constitution for the appointment, discipline and removal of judges, public officers, and the Commissioner of Police. There are no similar safeguards included in the Bill to ensure the independence of the Authority.
Judges are appointed, disciplined, or removed by the Governor on the advice of the Judicial Services Commission. The Judicial Services Commission’s independence is safeguarded by its membership which is defined also.
Appointments, discipline, and removal of other defined public officers are made by the Governor on the advice of the Public Service Commission [PSC]. The Governor may ignore that advice if it might prejudice His Majesty’s service.
Members of the PSC are appointed by the Governor acting on the advice of the Specified Appointments Commission which are all appointed by the Governor (two after consultation with the CM).
The Commissioner of Police is appointed on the advice of the Gibraltar Police Authority. The Governor may ignore that advice if anyone suggested might prejudice His Majesty’s service. Interestingly the removal of Ian McGrail as Commissioner of Police is currently the subject of an independent Enquiry.
Corrupt conduct is defined in the Bill by reference to a list of statutory and common law offences contained in a schedule. The CM has exclusive power to amend that list by passing regulations, which rather gives too much legislative power to the holder of that office.
Aside from the list in questions needing scrutiny for omissions and relevant inclusions, it is extraordinary (not to say beyond comprehension) that a person who could be the subject of an investigation (the CM) should have the sole and exclusive power to change the very list of offences covered by the law.
RESTRCTION ON PRODUCTION OF EVIDENCE
Those in government service as widely defined are obliged to provide relevant information and documents to the Authority. There is a huge exception which is entirely controlled by the CM.
The CM may conclusively certify any information or document should not be provided if (a) it will affect intergovernmental or international relations, (b) have a harmful economic effect, (c) disclose Council of Ministers or committee of Ministers deliberations or proceedings, (d) prejudice detection of crime, and (e) it injures public interest; or if the Governor certifies that it prejudices internal or external security.
CM’S ADDITIONAL POWERS
The Authority may be asked by the CM for reports, but the CM may censor those reports. The CM may do that by certifying that any aspect is contrary to the public interest.
As if all that were not enough, the CM is given the widest powers to make regulations. He may make those to cover (a) exchange of information with equivalent overseas activities, (b) prescribe other reasonable matters; (c) change the Schedule listing the offences covered (d) making transitionary provisions connected with coming into force of any provision and (e) for implementing international matters.
The Governor has a role to play in the debate resulting from the publication of the Bill as it touches hugely on matters of internal and external security. Those are both in the exclusive remit of the Governor under the Constitution.
The engagement of internal and external security is a reality that is recognised in section 26 of the Bill, which allows him/her to prevent relevant information or documents from being required. However, it is the Opposition that has a task to play in Parliament.
The Gibraltar Social Democrats [GSD] Opposition has a huge task on its hands if the Bill as currently published is the one put before Parliament for debate and enactment. The role of the Opposition is made harder considering the built in Government majority in Parliament, which is itself greatly controlled by the CM.
The GSD’s main weapon is public opinion. It has made a good start with its first press statement, but it cannot rest on its laurels. The GSD must whip up as much interest as possible.
It must take the debate to the streets, bars, restaurants, and the press in every way available to it. The GSLP-Liberals must not be allowed to get away with this farce aimed at spinning its way out of an election promise with little or any significant effect in the real world.
GSD MUST RIDE ON PUBLIC FEELINGS
Public opinion is running high against the GSLP-Liberals on the subject and on several other fronts. The GSD must ride that wave of public sentiment. It must also maintain its promise that it will take steps to improve any law passed under the GSLP-liberals were the GSD to get elected to government.
The GSD must not fail the electorate in that regards as it did up to 2011. Gibraltar finds itself where it is on corruption because the GSD failed to keep its manifestos promises on that same subject whilst it was in government. It’s own past views or failures are not an argument to prevent current new thinking. The CM’s use of that as an argument is just another sign of self-conscious weakness.
The level of thought given to ensuring that a law is passed that does not do what it is intended to do but is aimed at being able to say “I did what I promised I would do in my party’s election manifesto” is so huge that it is beyond belief. It is worthy of a Monty Python sketch.
It is Kafkaesque, which means that it has a “nightmarishly complex, bizarre, or illogical quality.” It does so precisely because it will allow the ‘party’ that we have, to carry on unabated, despite having the GSLP-Liberal Government attempting to give the appearance that something is being done to stop it.