The Openshaw Report

Transparency International UK raised concerns on Tuesday about the Gibraltar Government’s plan to update legislation governing public inquiries just weeks before the start of the McGrail Inquiry on April 8.

In a statement, the anti-corruption watchdog questioned the timing of the Bill for a new Inquiries Act and the Government’s intention to pass it swiftly.

The Bill is set to be passed during this week’s session of Parliament, using powers for urgent legislation to bypass the normal six-week wait for Bills to be debated in Parliament.

Transparency International warned against any threats to the independence of the McGrail Inquiry that could “severely undermine” confidence in Gibraltar’s governance.

The intervention drew a swift response from the Government, which said Transparency International had no cause for concern.

No.6 Convent Place said it had no intention to stop or delay the McGrail Inquiry using new powers in the proposed legislation, a draft of which was published last week. The powers to end or delay an inquiry were “identical” to those in UK law, it added.

No.6 Convent Place said the legislation was “a direct copy” of the UK’s 2005 Inquiries Act and was being updated now to provide the McGrail Inquiry and future inquiries with a “tried and tested” modern legislative framework. Gibraltar’s existing legislation dates back to 1888.

No.6 added that it was the Government itself that had convened the McGrail Inquiry in the first place “to provide detailed transparency of the relevant issues”.

CRITICISM

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.

Publication of the Bill so close to the McGrail Inquiry has already drawn criticism from the GSD, which said the draft legislation also includes provisions to restrict the disclosure of material.

The GSD says the Bill should not be passed at this time and that the Government should do nothing that might “potentially or by perception” appear like interference.

On Tuesday, Transparency International echoed those concerns and said the timing of the Bill raised suspicion that it was intended to undermine the McGrail Inquiry.

“The purpose of this inquiry is to establish the facts surrounding the early retirement of Gibraltar’s former Police Commissioner,” said Daniel Bruce, Chief Executive of Transparency International UK.

“Proceedings are due to start in earnest this April, which include hearing serious allegations of corruption that reach the highest level of office in this British Overseas Territory.”

“Any attempt to fetter the independence of the inquiry, obstruct its timely progress, or unduly influence witnesses would severely undermine confidence in the quality of Gibraltar’s governance.”

“Due process must take its course without fear or favour.”

‘NO CONCERN’

In responding to Transparency International’s statement, the Gibraltar Government sought to explain its reasoning for publishing the Bill now.

“The Government considers that it is appropriate to make these amendments now in order to ensure that the processes and procedures for the current McGrail Inquiry, and all future inquiries, enjoy a clear statutory footing in more modern legislation that reflects the well-established, tried and tested law and practice in the UK,” No.6 said in the statement.

“The Government does not consider that this creates any reason for concern at all, let alone in respect of transparency given that the Government has convened the current McGrail Inquiry, as it does all inquiries, to provide detailed transparency of the relevant issues.”

“Additionally, it should be noted that the new legislation would not in any way fetter the independence of the current McGrail Inquiry, in any way obstruct its progress or in any way influence – unduly or otherwise – any witness, let alone undermine confidence in Gibraltar’s excellent standards of governance, which are an example in every respect.”

The Government said it did not accept that the introduction of an Act replicating the law applicable in the UK was “capable of amounting” to “interfering with the independence of an existing inquiry”.

And it added that the Government was clear that “there has been no ‘corruption at the highest levels of the Government of Gibraltar’ and has, reflecting transparency, itself called the inquiry to investigate such allegations as have been made.”

“The Government believes that the Inquiry will demonstrate that and all of the facts which led to the Chief Minister and the former Governor losing confidence in the then Commissioner of Police.”

“It would not be appropriate to say more at this stage, but it is important to reflect that the statement from Transparency International and other individuals are not accurately reflecting that the McGrail Inquiry is an inquiry into the reasons and circumstances leading to Mr McGrail’s decision to retire following discussions with the former Governor and not into anything else.”

The Chief Minister insists the McGrail Inquiry is investigating the reasons for the retirement of the former Police Commissioner, not allegations of corruption. Fabian Picardo says the reason why the inquiries legislation is being updated now is because two to three months ago he was advised to do so by the government’s legal counsel in the McGrail Inquiry, Sir Peter Caruana, and it’s taken till now to get it ready. Mr Picardo told GBC the sooner the inquiry comes, the better. He said he is not bringing in Vladimir Putin’s inquiries law, he is bringing in the most progressive and modern UK law.

@DG-Truther-Videos

The GSD says the Government is planning to rush through a bill which would give it power to suspend the McGrail inquiry or restrict the disclosure of material.

The Leader of the Opposition says this appears to be a "brazen attempt" to give Fabian Picardo further powers ahead of an inquiry that is due to investigate his actions.

Christina Cortes spoke to Keith Azopardi.

@DG-Truther-Videos

The recently published Inquiries Bill 2024 [New Law] gives the GSLP-Liberal Government much wider powers over inquiries than exist now.

Suspiciously, the New Law comes before Parliament long after the start by Sir Charles Peter Lawford Openshaw, DL [Inquiry Commissioner] of the Inquiry into the “Retirement of the Former Commissioner of Police” [Inquiry], namely Ian McGrail. The Chief Minister Fabian Picardo’s involvement in that is a subject of the Inquiry.

Transparency International UK was prompted by the New Law to issue a public statement in response to reports of political interference in the Inquiry. The statement is critical of the Government’s actions.

MAJOR CHANGE IN LAW

The New Law, if passed in Parliament and assented to by the Governor, will change the law governing inquiries presently. Government Bills are invariably made law due to the inbuilt government majority made up of ministers.

We will need to wait and see whether the Inquiry will continue under the current law, the Commission of Inquiries Act [Existing Law], or now come under the New Law, but as presently drafted the New Law will govern the future Inquiry proceedings.

The rush to get it enacted indicates that it will come under the New Law, as the transitional provisions state.

Under the New Law the government can amend terms of reference, suspend the Inquiry, end the Inquiry, restrict what information is public, supress publication of any report, or withhold information in a report. A more detailed analysis can be found below.

DEMOCRACY UNDERMINED

If it comes under the New Law, it establishes a more undemocratic process than the Existing Law. It is even more undemocratic than in the UK because there an inquiry is called by a minister, not the Government.

A Minister in the UK is fully answerable and accountable to Parliament. The Gibraltar Government is not answerable to Parliament in the same sense, as here there is no separation of powers between the executive government and the legislative and inquiring Parliament. Here the executive government dominates and controls.

A Government in Gibraltar cannot be defeated in Parliament unless a minister rebels, which is most unlikely considering the salaries earned and many other considerations.

In any event, why should Gibraltar blindly follow UK law, especially when that law is more restrictive and undemocratic than the law as it stands. That is especially so when the Inquiry has already been set up.

‘URGENT’ DEBATE IN PARLIAMENT

The Bill will be dealt with in Parliament this week, probably on Thursday, as the Chief Minister, Fabian Picardo, who is a ‘Core Participant’ in the Inquiry and so an interested party, has certified it as urgent. It seems that conflicts of interest play no part in certain decisions.

Accordingly, Parliament can debate and pass the New Law without waiting for the six-week period normally required before a law can be debated and come into force. What exactly the urgency is remains unknown, except that waiting the six weeks takes it beyond the start date of the Inquiry on the 8th April 2024.

Nothing seems to have changed since the Commission establishing the Inquiry was issued on the 4th February 2022 to introduce any urgency. Certainly, there is nothing in the public domain indicating any change.

Further, The Gibraltar Chronicle reported on 9th March 2024 that neither the Inquiry Commissioner nor anyone in the Inquiry legal team had been made aware of the proposal to change the law.

It indicates that there was no concern about dealing with the Inquiry under the Existing Law. Any concern must have been that of someone else, probably the Chief Minister or his Government as a whole.

TRANSPARENCY INTERNATIONAL

Transparency International UK, prompted by the above event, has today “…warned against threats to the independence …” of the Inquiry, which is “… examining serious allegations of corruption at the highest level of the Government…”.

Daniel Bruce, its Chief Executive said, “Any attempt to fetter the independence of the inquiry, obstruct its timely progress, or unduly influence witnesses would severely undermine confidence in the quality of Gibraltar’s governance. Due process must take its course without fear or favour.”

THE COMMISSION TERMS

The Commission establishing the Inquiry seeks that the Inquiry Chairman “… inquire, as he shall in his absolute discretion consider appropriate, into the reasons and circumstances leading to Mr Ian McGrail ceasing to be Commissioner of Police in June 2020 by taking early retirement.”

The Inquiry Commissioner “… is to ascertain the facts and report to the Government on the above matter.”

Importantly it makes clear that, “Save as the [Inquiry] Commissioner may in his discretion determine, the Inquiry is to be held in public…”.

ONLY LIMITED MATTERS TO BE PRIVATE

The Inquiry Commissioner has determined so far that only some limited aspects of the evidence dealing with “Operation Delhi” should be redacted or kept private. A ruling on that subject followed applications made by the Royal Gibraltar Police and by the Chief Minister.

Relevant summaries of those rulings were made public at the end of last week. They can be found on the Commission website.

Operation Delhi involved an investigation into alleged hacking and sabotage of the National Security Centralised Intelligence system and into an alleged conspiracy to defraud a private company operating the system.

The Inquiry Commissioner has also found that three of 19 statements filed by current or former members of the Gibraltar Police Federation are relevant. Those three will be considered by the Inquiry, with any irrelevant parts first being redacted.

The Inquiry Commissioner will also seek evidence and disclosures about how the Gibraltar Police Federation statements came about, in view of allegations that incentives were offered in return for them.

NEW LAW

The New Law, in most regards that can apply to Gibraltar, is an adapted direct copy of the Inquiries Act 2005 of the United Kingdom [UK Act]. It is put forward soon after rulings by the Inquiry Commissioner of what should be public and what should remain private.

There are some minor differences, but overall, it serves to make extensive provisions governing Inquiries. In doing so it serves to curtail the discretion of the Inquiry Commissioner in several areas at this late stage in what is an ongoing process for over two years. It does so especially in the area of who decides what is private and what is public.

GOVERNMENT NOT MINISTER

One difference is that the UK Act refers to a Minister or Ministers convening an Inquiry and taking all sorts of steps within it. That is changed in the New Law. The reference there is to the “Government”. In fairness, the Existing Law also refers to the “Government”, and not to a Minister or Ministers.

The effect of that reference to the “Government”, however, is nominally to distance the Chief Minister from any decision, but the reality is that the Government is unlikely to decide something absent instigation, or at least serious involvement, by the Chief Minister.

There are several interesting provisions in the New Law, some follow. It may well be that all or some of those were implicit in the Existing Law. That is not an exercise that this piece undertakes.

SUMMARY OF NEW LAW CHANGES

The Government gains power to amend the terms of reference after consultation with the Commissioner of an inquiry. It means that the Government can change matters engaged in the Inquiry, particular matters on which the Inquiry may determine the facts, the ability to make recommendations, and other matters relating to the scope of the Inquiry.

A difference from the UK Act is that assessors can only be appointed, and their appointment be ended, by the government before an inquiry starts, or during an inquiry by the Commissioner of an inquiry, only with Government consent. In the UK The Commissioner does not need an equivalent consent.

There is a new power to suspend an inquiry to allow for any other investigation into matters related to an inquiry to come to an end, or any civil or criminal proceedings on those matters to finish.

The government can end an inquiry by giving notice, aside from when a final report is provided with notification that the terms of reference have been fulfilled. Accordingly, the Government can bring an inquiry to a close. The current GSLP-Liberal Government has publicly said that it does not intend to end the Inquiry.

It can convert the Inquiry under the Old Law into an inquiry under the New Law, simultaneously allowing a change to existing terms of reference.

Also, terms of reference can be changed if the Government considers that the public interest requires that to be done. The chairman of any inquiry must first be consulted. Parliament must be informed. We shall see if the Commission Terms of reference will be changed by the Government.

The urgency with which the Government intends to pass the New Law indicates that such a change will be done. The law, however, only allows for such a change if, certain events have caused or could cause public concern, or there is public concern that certain events may have occurred. What those may be right now, such as to allow for a change, remain unknown.

Inquiries and all information coming out in them will be in public, but those rights can now be restricted by a notice given to the chairman by the Government. The chairman of an inquiry retains the right to restrict publicity.

Restrictions can only be imposed if required by any law or as are considered conducive to the fulfilment of terms of reference or in the public interest having regard to specified matters, including damage to national security, international relations, or the economic interests of Gibraltar.

The chairman of an inquiry continues to have power to compel the giving or production of evidence save for evidence that would be subject to privilege in civil proceedings or to any retained EU obligations, and public interest immunity applies also.

The Government and the Financial Services Commission now have power to prevent the revelation of information where either consider that “… the public interest in the information being revealed outweighs the public interest in avoiding a risk of damage to the economy.”

An inquiry report setting out facts found and recommendations (if terms of reference require those) must be delivered to the Government. A full report must be published if the Government has so notified the chairman of an inquiry, or the chairman accepts responsibility or publication on being invited to publish by the Government.

A report may withhold information to the extent required by any law or retained EU obligation, or as the publisher may consider necessary in the public interest, which includes national security, international relations, or economic damage.

JUDICIAL REVIEW

Judicial Review in the Supreme Court would be the recourse available to anyone wishing to question any decision. It is an expensive procedure, that alone is a huge disincentive, which acts to the advantage of the Government in relation to any decision taken by it as permitted by the New Law.

The New Law further restricts that recourse by imposing a 14-day limit from awareness of any decision on such an application being made engaging a government decision or a member of an inquiry panel. The time restriction does not apply to decisions as to contents of any inquiry report, or any decision that one could not be aware of until a report is published.

RULES

There may be more to come once the New Law is in force. It gives the government power to make rules.

Those rules can engage evidence and procedure, return of documents given to an inquiry, and payment of awards and expenses to witnesses.

Concerns and criticisms being expressed today of the proposed new Inquiries Act 2024 [New Law], on the eve of the start of hearings in the McGrail Inquiry, were matters that were expressed in the UK before the Inquiries Act 2005 [UK Law] was passed.

There is no justification for the proposed New Law, especially its convenient timing.

The GSLP-Liberal Government say that the New Law is simply a modernising piece of legislation. If, contrary to the evidence, that were to be true, the Government would support the GSD Opposition amendment making the New Law not applicable to the McGrail Inquiry and would not be rushing it through Parliament.

GSLP-LIBERAL DEFENCE

The GSLP-Liberal Government continue to defend its action in a press release issued yesterday [Press Release] saying that the New Law “… is a direct copy of the more modern…” UK Law. That comes from a political party that preaches no colonialism.

It also emphasises that “… it has no intention to stop or delay the current inquiry into the retirement of Ian McGrail.” There is, however, no commitment not to use any of the new powers that allow the GSLP-Liberal Government room to curtail certain aspects of the McGrail Inquiry, and to avoid publicity.

The indisputable proof of no interference would be that the GSLP-Liberal Government declares its support to the GSD amendment to the New Law.

The amendment disapplies the application of the New Law in its entirety to the McGrail Inquiry. It would continue under the current Commission of Inquiries Act [Existing Law], on which authority it was established, as if it that law had not been repealed.

UK CRITICISMS AND SUGGESTED UPDATES

The pre-2005 UK criticisms were that under the UK Law too much power was being given to ministers (in Gibraltar, to the Government).

Those included the power to restrict attendance at the inquiry, the disclosure or publication of evidence and the whole or parts of any Commission report, and the power to determine whether any evidence should be withheld in the public interest.

Further, a UK Select Committee reported on the UK version of the New Law on 11th March 2014. It made many recommendations, none of which have been considered when proposing the New Law as a Bill for debate and passing by Gibraltar’s Parliament.

Those recommendations included one that there should be stronger controls on the powers of ministers (in Gibraltar the government), for example needing ‘consent’ from a chairman of an inquiry rather than just ‘consulting’ wherever consultation was needed under the UK Law.

Additionally, that only the chairman should have power to withhold publication of any material except if public security considerations were engaged.

GSLP-LIBERAL SPIN

Despite that the Gibraltar Government try to nonsensically spin that the New Law (which it incorrectly refers to as being ‘amendments’ when it is a wholesale change of law) is beneficial. They must have thought that the existing Act provided a perfectly good system when in 2022 the McGrail Inquiry was convened. So why the change of heart now?

In the Press Release the Government argues that it “… considers that it is appropriate to make these amendments now in order to ensure that the process and procedures for the current McGrail Inquiry, and all future inquiries, enjoys a clear statutory footing in more modern legislation that reflects the well-established, tried, and tested law and practice in the UK.”

CARUANA ADVICE

More truth now comes out, with the Chief Minister’s admission on GBC today that the Government was advised several months ago by the Government’s Counsel in the McGrail Inquiry, former GSD Chief Minister Sir Peter Caruana, to enact the New Law.

The logical conclusion is that the New Law is motivated therefore by a desire to have an element of greater power over the progress of the McGrail Inquiry. It purports to achieve that by the powers that will be newly acquired by the Government.

GREATER GOVERNMENT POWERS

The New Law gives the Government hugely greater power and control over the conduct of inquiries, but that, we are asked to believe, is not the reason why the New Law is being introduced ‘urgently’ by the GSLP-Liberal Government.

It is just a further coincidence also that the McGrail inquiry will touch upon the behaviour of the Chief Minister, Fabian Picardo.

Or will it now? It seems that the Press Release also distracts from that aspect of the McGrail Inquiry. It argues that “… the statement from Transparency International and other individuals are not accurately reflecting that the McGrail Inquiry is an inquiry into the reasons and circumstances leading to Mr McGrail’ decision to retire…”.

Doesn’t that include any misbehaviour forcing Ian McGrail to take the action that he took?

CORRUPTION IS PART OF INQUIRY

The Press Release itself acknowledges, “… His Majesty’s Government of Gibraltar is clear that there has been no “corruption at the highest levels of the Government of Gibraltar” and has, reflecting transparency, itself called the inquiry to investigate such allegations as have been made.”

The GSLP-Liberal Government accordingly acknowledges that corruption will be investigated in the McGrail Inquiry. It may well be found that there was none that led to Ian McGrail resigning.

PUBLICATION?

It is that issue of corruption precisely which remains to be clarified by any report of the McGrail Inquiry once it is completed, and if the GSLP-Liberal Government allow it to be made public.

If it is not published or parts are kept hidden public speculation will be undoubtedly fuelled. Any such speculation will not be favourable to the Government. It will undermine public trust in it.

Of course, that will only be possible also if the GSLP-Liberals do not use their new powers under the New Law to restrict or curtail the McGrail Inquiry itself, or any pertinent parts of any evidence or of the final report itself.

COURT OF PUBLIC OPINION

If the GSLP-Liberal Government do not exclude the McGrail Inquiry from the remit of the New Law, as suggested by the GSD, the public will suspect that there is a reason. The reason will be felt to be that it is because the New Law favours the GSLP-Liberal camp.

If the New Law is passed and made applicable to the McGrail Inquiry, the public will surmise that it will be used to favour the GSLP-Liberal camp. It will be seen as the McGrail Inquiry progresses and if steps permitted by the New Law are taken by the Government.

If the McGrail Inquiry proceeds to finality and produces a report and that report is not made public, or parts of it are not made public, that will be seen as the GSLP-Liberal camp hiding inconvenient truths.

ROCK AND A HARD PLACE

All in all, the Chief Minister, Fabian Picardo, and the GSLP-Liberal Government have put themselves between a rock and a hard place. Their only way out is to support the GSD amendment and continue the McGrail Inquiry under the Existing Law.

If ever any government has committed an own goal, the McGrail Inquiry and surrounding events is that goal, irrespective of the outcome of the Inquiry. It seems that Fabian Picardo does not mind as he has announced his retirement from frontline politics, but it will affect those he leaves behind.

The vacuum in Gibraltar politics grows, therefore. It is difficult to see presently from where and by whom that vacuum will be filled.

The McGrail Inquiry Team will invite submissions from core participants on whether they disagree with the automatic application of the new legislation to the inquiry.

A fact sheet, published yesterday on the inquiry's website, confirmed it was not consulted in relation to the Inquiries Bill.

It also says the Inquiry now cannot require a person to give evidence which could not be required by a civil court.

The fact sheet is available here.

McGrail Inquiry Team asks core participants if they disagree with automatic...

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The McGrail Inquiry has published the schedule for its main hearing due to start on April 8, setting out a detailed timeline for when it will take evidence from key witnesses in the process.

The schedule begins this week with three reading days starting Wednesday, though the public hearing itself will not commence until next Monday.

The first three days next week will be taken up by opening statements from lawyers for former police Commissioner Ian McGrail and the Government parties, as well as lawyers for the remaining core participants.

The Inquiry will commence hearing witness evidence on April 11, according to the schedule published just before the Easter break.

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.

The Inquiry will commence its public hearings against the backdrop of furious controversy and international scrutiny.

On Monday, The Times published a two-page article on the Inquiry, which it said “threatens to permanently tarnish the image of the tiny peninsula”.

And last week, the Government and the Opposition were embroiled in bitter exchanges over a change to Gibraltar’s inquiries’ legislation approved by Government majority in Parliament just days before the McGrail Inquiry is due to commence.

The Gibraltar Government says the new legislation, which was commenced last Thursday, is designed to modernise Gibraltar’s laws and bring them in line with the UK, and that it will benefit all the McGrail Inquiry’s participants.

But the Opposition criticised the move as “an ugly power grab” designed to give the Government powers to “sidestep” the McGrail Inquiry chairman and restrict public access to information or hearings on public interest grounds.

POLITICAL ROW

Last Tuesday the Leader of the Opposition, Keith Azopardi, met with the Governor Vice Admiral Sir David Steel to set out the Opposition’s concerns.

The meeting was initially arranged for 10am but was delayed to 4pm at the request of the Governor, by which time Royal assent had been granted to the change in legislation.

Mr Azopardi said after the meeting that it had not been about assent, which he said was a matter for the Governor within his constitutional powers, but about explaining in candid terms the GSD’s concerns about the legislation.

Mr Azopardi nonetheless said it was “strange” that Royal assent had been granted before the meeting, particularly given it had originally been scheduled in the morning.

The Government accused the Opposition of effectively seeking direct rule to prevent the change in legislation.

And it claimed too that Mr McGrail’s lawyers had also unsuccessfully sought the intervention of Foreign Secretary Lord David Cameron to withhold Royal assent and prevent the new Act from becoming law.

Mr Azopardi dismissed the criticism as “pure invention and misinformation”, insisting it was “simply not true” that the GSD had sought direct rule after the passage of the Inquiries Bill 2024 through Parliament.

Mr Azopardi insisted he was “very careful” not to cross constitutional boundaries in his meeting with the Governor, and that he stated this explicitly in communications with Sir David ahead of the meeting.

In a statement last Thursday, Mr Azopardi quoted from a message he sent to the Governor on the eve of the meeting in which he said: “I have not suggested in any communication that I am going to seek to persuade you on whether to assent to this Bill or not. I am very conscious of the boundaries here and I have no intention of crossing lines that I view should not be crossed. That judgment is a matter for you within the constitutional provisions and I intend to make no submissions or requests in that regard.”

Mr Azopardi nonetheless made clear in the statement, as he has done previously including in Parliament, that the GSD believes the Office of the Governor is conflicted “because that is how we see the deep festering swamp of conflicts that affect this Bill.”

“Our role is to call it how we see it and not worry whether the Governor is offended by that,” Mr Azopardi said.

“That however is a mile removed from the pure invention by Mr Picardo that we are seeking direct rule which we have not sought and do not seek.”

Mr Azopardi described the legislative change as “a constitutional outrage and an assault on good governance”.

“But this needs to be resolved democratically by the people kicking out this Government,” he said.

And he added: “As someone who has fought for the notion of self-determination and self-government for 30 years I am very careful in navigating these boundaries and would not take a step that I would deem colonial.”

“Mr Picardo knows all this and that’s why this is not just a smokescreen but a deliberate lie.”

But the Gibraltar Government hit back at what it described as Mr Azopardi’s “unsustainable excuses”.

“The response from Mr Azopardi to the clear attempt he made to seek direct rule fails to address the fact that he was concerned that the meeting with the Governor was delayed until after assent was given,” No.6 Convent Place said in a statement on Thursday.

“Why would that have been an issue if he was not seeking to make his points before assent, to seek to prevent or delay assent being given?”

“Mr Azopardi will, therefore, go down in history as a Leader of the Opposition who has been disloyal to the interests of Gibraltar as a whole and put his own, personal and party-political interests ahead of the public interest of Gibraltar in seeking direct rule, in a manner that would have reversed 50 years of constitutional development in Gibraltar.”

No.6 also hit back at comments made by Charles Gomez, one of Mr McGrail’s lawyers, after the Government revealed that he and another member of Mr McGrail’s legal team, Adam Wagner, had sought the intervention of Lord Cameron to prevent the Inquiries Bill from becoming law.

Mr Gomez had said the Chief Minister “…fails to understand the Constitutional arrangement in Gibraltar which places the responsibility of preserving the peace and good governance of Gibraltar on His Majesty's government in London.”

“We deprecate the notion of an imagined cosy relationship between the local government and London which can interfere with a citizen's right to defend himself against the behaviour that we have seen emanating from the local government these past few weeks,” Mr Gomez said last week.

“The rule of law trumps personal and professional or sectarian interest.”

“We shall continue to promote Mr McGrail's interests fairly and proportionately.”

But No.6 said the remarks were “legally nonsensical”.

It said they ignored that “…the principal to make laws for the ‘peace, order and good government’ of Gibraltar is constitutionally vested in the Gibraltar Parliament, and not in the Government of the United Kingdom.”

“The reserved power, which is a different power in relation to "peace, order and good government" is, anyway, of His Majesty, not the UK Government, and is contained in paragraph 8 of the Annex to the Constitution,” No.6 said.

“The UK Government, therefore, rightly gave short shrift to Mr McGrail's lawyers' attempts to have direct rule imposed on Gibraltar, not least because, in making the new Inquiries Act, the Government of Gibraltar were simply copying the current state of UK law.”

“It is remarkable to think that Mr McGrail's lawyers might purport to charge the Gibraltarian taxpayer for these attempts to overturn our Constitutional development in seeking to deploy such retrograde, colonial measures,” it said, adding that the sums paid to Mr McGrail's lawyers to date exceeded £750,000.00.

“Nonetheless, these failed attempts at having Direct Rule imposed on Gibraltar do help to show that the GSD, Mr Azopardi in particular and Mr McGrail, through his lawyers, clearly are the ones who put their narrow interests before the wider interests of Gibraltar,” the statement from No.6 added.

“They will clearly stop at nothing in their ‘scorched earth’ campaign of libelling and vilifying the Chief Minister and the Government of Gibraltar, even though that has a hugely negative effect on Gibraltar as a whole and the people of Gibraltar in particular.”

“That selfish and self-serving approach from Mr Azopardi, the GSD and Mr McGrail and his legal team might give the public reason to pause and realise that they are not acting in the public interest of Gibraltar and that the Government, despite the intense criticism that has been whipped up against it, are acting to protect the public interest of Gibraltar and its people.”

The schedule for the Inquiry into the early retirement of the former Commissioner of Police has been published.

It includes the list of participants who will be giving evidence over five weeks.

Ros Astengo will be following the inquiry with Jonathan Sacramento for GBC in the coming weeks and has been looking at the schedule.

She spoke to Iain Triay Clarence.

The trial starts on Monday the 8th of April with opening remarks from the Inquiry's Counsel and Counsel for the different participants over the first two days.

Ian McGrail's evidence kicks off week two. He's had two days set aside for his evidence, as has James Levy, senior partner at Hassans, whose offices and home were allegedly searched as part of police investigation, Operation Delhi.

The current Police Commissioner, Richard Ullger, and his deputy, Cathal Yeats, give evidence on week four, along with the Police Authority and the former Police Federation President.

Chief Minister, Fabian Picardo, and then Governor, Nick Pyle, are set to close the inquiry with two days each over week five.

You can follow the McGrail Inquiry in detail on GBC from Monday morning.

GBC Television and Radio Gibraltar Plus will stream proceedings from the Garrison Library.

For legal reasons the hearing will be broadcast on a 10-minute delay.

That’s the McGrail Inquiry on GBC Television and Radio Gibraltar Plus - 100.5FM on your Radio and also available on the Radio Gibraltar app and on gbc.gi.

The Gibraltar Government has issued a Restriction Notice under new powers in the controversial Inquiries Act 2024 to keep “very limited” references to Gibraltar’s security systems out of the public eye during the McGrail Inquiry, citing “vital public interest” grounds.

According to No.6 Convent Place, the Cabinet met on Thursday afternoon to consider the exercise of powers under Section 19 of the new Inquiries Act to issue a Restriction Notice relating to “a small and very limited number of references” to the National Security Centralised Intelligence System in documents which are before the McGrail Inquiry.

“Given the nature of and the reasons for making a Restriction Notice, it is obviously not possible to provide details of the information covered by the Restriction Notice, since that would defeat the very purpose of issuing it in the first place,” No.6 said in a statement.

“The Government is able to say it has given the Restriction Notice to the Chairman of the Inquiry solely in order to protect and avoid the risk of considerable harm to what the Government considers to be vital public interests of Gibraltar of both a security and wider nature, including its economic interests.”

Due to the nature of these public interests of Gibraltar, the Government said it had offered to brief the Leader of the Opposition, Keith Azopardi, on “Privy Council terms”, including about the information covered by the Restriction Notice.

Accepting a briefing on Privy Council terms is voluntary but anyone agreeing to them would have to treat the information as confidential.

The Cabinet meeting on Thursday was chaired by the Chief Minister, Fabian Picardo, and was attended by all ministers. The Minister for Sport, Leslie Bruzon, attended virtually because he is away from Gibraltar.

The Attorney General, Michael Llamas, also attended the meeting at the invitation of the Chief Minister.

No.6 said too that the Governor, Vice Admiral Sir David Steel, had been informed throughout of the reasons for the Restriction Notice being “necessary and essential”.

The decision of the Cabinet to issue the Restriction Notice was unanimous, with every member of the Cabinet agreeing, after carefully considering all aspects of the issue, that it was essential in the public interest of Gibraltar to issue it to the Chairman of the Inquiry, retired UK High Court judge Sir Peter Openshaw.

Although it could not go into the detail of Restriction Notice, No.6 confirmed that the restricted information did not relate to:

  • The Chief Minister;
  • His actions or inactions, or any matters which have been alleged against him;
  • His status as a partner, on sabbatical, of law firm Hassans;
  • Any partner of the law firm, Hassans;
  • Any factual dispute between him and former police Commissioner Ian McGrail or any other of the matters of controversy referred to in the public exchanges on the Inquiry;
  • Any information the restriction of which in any way protects the Chief Minister or assists him in relation to the matters being investigated in the Inquiry.

In the statement, No.6 also confirmed that:

  • The information does not relate to Mr McGrail;
  • His actions or inactions;
  • Any matters which have been alleged against him or any factual dispute between him and the Chief Minister.

The Government said the Restriction Notice did not affect the capacity of the Chairman of the Inquiry, the core participants in the Inquiry and their respective legal teams to look at all the evidence, including the evidence which is subject to the Restriction Notice.

It said too that the notice did not affect the ability of the Chairman to take full account of the restricted information when making his findings.

“The sole effect of the Restriction Notice is to prevent the restricted information being published, including to the world at large outside Gibraltar,” No.6 said.

The Restriction Notice was signed by the Minister for Justice, Nigel Feetham, in keeping with an undertaking given by the Chief Minister to Parliament at the time of the debate on the second reading of the Bill for the Inquiries Act.

No.6 said too that the decision to issue the Restriction Notice could be judicially reviewed in court by interested parties.

Mr Feetham said: “I have said previously that I put people above politics and this is certainly not even about party politics.”

“I have considered this matter very carefully with all my colleagues in Cabinet.”

“We have come to the same, unanimous, conclusion, based on sound legal advice and our careful consideration of our national security and the public interest, that it is necessary and essential that we should issue this Restriction Notice and that I should sign it on behalf of the whole Government to protect our country and protect our people.”

“I have sworn an oath to protect the Rule of Law and in signing this Restriction Notice I am clear – as are my ministerial colleagues - that I am acting properly and in keeping with my obligations to ensure that our nation is secure and our interests as a people are protected at this important time.”

“This was rightly a decision for the whole Government to take, fully appraised of information relating to our national security and our common, public interest.”

“Ministers are collectively accountable to the electorate and Parliament for the consequences of this decision.”

“I wish I could tell the people of Gibraltar more, but we must act responsibly in a matter of such national importance.”

“The easiest thing I could do now is direct criticism at the Opposition for the hugely unfair manner they have treated the Chief Minister and the damage they have done to the reputation of Gibraltar, but I choose to refrain from doing so in the wider public interest of our beloved country, which matters more to me than party politics.”

“I call on Mr Azopardi to accept the confidential briefing offered by the Government in the wider, non-partisan national interest.”

GSD REACTION

Last night, the Opposition reacted to the development and repeated concerns it has voiced over the past fortnight about the change in the law and any use by the Government of the new powers it contains.

“We have serious concerns that this is no more than an attempt to side-step the Chairman of the Inquiry who has already ruled against the Government when it made submissions on public interest grounds to seek to exclude certain evidence,” the GSD said in a statement.

“If this is a second bite at that particular cherry then all that has happened is that the Government have converted themselves into the Court of Appeal from the Chairman.”

The Opposition noted the Government’s offer to show it the Restriction Notice on Privy Council terms.

“This means that the Opposition would be unable to comment publicly on the terms of the notice for the moment,” the GSD said.

“Despite that the Government appears to feel free in their own press release to tell the public what the notice allegedly is and isn’t about.”

“It is, however, impossible for the Opposition to say one way or the other what all this is about as we have not seen the notice and neither is it able to publicly comment on the real reasons behind the decision.”

It added: “The Government really cannot have it both ways - to seek to gag Opposition comment but then proceed to comment itself in a one-sided way.”

“However, in deference to the Inquiry Chairman who has not yet expressed a view on this the Leader of the Opposition is confirming to the Chief Minister that he is prepared to receive the notice on Privy Council terms at this stage to see its context and until the Chairman decides whether it should be made public.”

“This is out of respect to the Inquiry Chairman as the Opposition have always proceeded on the basis that the Chairman should be allowed to carry out his job in the way he considers appropriate.”

“If the Chairman makes the notice public the Opposition may comment further or indeed comment on the details as disclosed by the Government.”

“At this stage the Opposition will not accept any further private briefing in relation to purported reasons.”

“Finally we are dismayed at the nonsense being spouted by the Government and Mr Feetham in particular, about the Opposition having damaged Gibraltar’s reputation.”

“This is palpably false,” the GSD said.

“The damage to Gibraltar’s reputation has been caused by Mr Picardo and his Government.”

“There is now a litany of examples in this saga that show this.”

So, on the eve of the start of the McGrail Inquiry, the Friday before the Monday, the Government issues a restriction notice [Notice] “…relating to a small and very limited number of references to the National Security Centralised Intelligence System…” [NCIS]. The Press Release about the Notice must be commended for its fullness and clarity.

It augurs especially well, for an objective hearing going forward, that even the restricted material will be heard privately by all the participants in the Inquiry and can be reviewed in full and fully considered by the Inquiry in its findings. Accordingly, on the face of it, it is difficult to judge that it will curtail the Inquiry. It seems to just keep certain matters to a very restricted group of people.

THE NOTICE

Details of what the Notice covers cannot, obviously be, and have not been, given publicly, as that would defeat its very purpose. Accordingly, none appear on the Notice.

The Notice says, it has been issued “… solely in order to protect and avoid the risk of considerable harm to what the Government considers to be vital public interests of Gibraltar of both a security and wider nature, including its economic interests.”

SUBJECTIVITY

The criticism that the Government retains the subjective power to make that judgment remains, however. The whole system would be better served if an independent person, the Chairman of the Inquiry, for example, would be empowered to take the decision.

Position was precisely that before the law was changed just days ago. The amendment was made contrary to the recommendation (in the UK) of a 2014 Parliamentary Committee. It is a change that leaves a bad taste in the mouth, or at least a bad whiff in the nose.

IGNORED BY THE NOTICE

The Government has confirmed that none of the restricted information in the Notice relates to, the Chief Minister, his actions or inactions, or any matters which have been alleged against him, or his status as a partner (on sabbatical) of Hassans.

It does not concern any factual dispute between him and Ian McGrail, or any information which by restricting it would protect the Chief Minister in any way or help him on matters that the Inquiry is inquiring into.

The secret information also does not relate to Ian McGrail, his actions or inactions, or any other matter alleged against him or any factual dispute that he has with the Chief Minister.

It does not relate to any partner of the law firm Hassans.

It does not relate to any matters of controversy referred to in the public exchanges on the Inquiry.

36 NORTH – BLAND

In this context it is important to remind ourselves bits that are in the public domain. One bit is the whole 36 North-Bland controversy, which is publicly known to have involve the operation of contracts in Gibraltar related to NCIS. Mr. Picardo has admitted publicly that the partners of Hassans own 36 North, and that he is a partner on sabbatical.

The Inquiry is poised to fully investigate that affair as it has a bearing on Ian McGrail’s decision to retire as the Commissioner of Police and as fully set out in the Inquiry’s List of Issues.

It resulted in three arrests, all three being charged, and then the being released by the Attorney General using his constitutional power to discontinue criminal proceedings. Those powers were used in the public interest, despite that evidence to prosecute existed according to the Director of Public Prosecutions.

SECRECY

In fairness, as far back as 24th March 2021, GBC was reporting the Chief Minister, in answer to questions in Parliament, had said that some services provided by Blands “… were so sensitive, he could not disclose these publicly.”

The consistency of the Chief Minister’s present position is supported historically, therefore.

ADVERSE INTERNATIONAL PUBLICITY FOR GIBRALTAR

The sadness of all this sorry affair is that it, including adverse international press coverage, could all so easily have been avoided by the GSLP-Liberal Government not changing the law at the last minute.

The likelihood is that international press coverage of the Inquiry will increase as the interest of the international press has now been pricked.

SUSPICION AND MISTRUST

The Minister for Justice, Nigel Feetham has said, that the issue of restriction notices “… was rightly a decision for the whole Government to take, fully appraised of information relating to our national security and our common, public interest. Ministers are collectively accountable to the electorate and Parliament for the consequences of this decision.”

However, senior members of the GSLP-Liberal Government are intricately involved in maters surrounding the McGrail Inquiry. Consequently, it is the objectivity of that Government taking those decisions, changing the law to assume power to itself, and using it, that has aroused suspicion and mistrust.

The suspicion and mistrust is hugely magnified when matters of security have already been ruled on by the Inquiry itself, after hearing argument from the Government’s own lawyer, yet the Government consider it necessary to urgently change the law to take power into itself and to use it on the very eve of the Inquiry.

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RGP lawyer Nick Cruz said Governor has no power to remove the Police Commissioner. He accused Nick Pyle of taking confused, hasty & unconstitutional actions.

Video at link above.

The lawyer representing former Superintendent Paul Richardson said it was frustrating Fabian Picardo has been able to recover his WhatsApps to and from everyone else but not to and from James Levy.

Patrick Gibbs KC is acting for Mr Richardson, who led on the Operation Delhi Investigation.

Mr Gibbs said by the time the shouting and politicking was over, "Mr Levy and his phone retreated into shadows".

Video at link above.

The Gibraltar Police Authority's lawyer, James Neish KC, has told the Inquiry that the conspiracy investigation was not a factor considered by the GPA when inviting Mr McGrail to seek early retirement.

The GPA is the body responsible for overseeing the force.

Mr Neish said he did not see how the former commissioner's position could continue to be tenable after both the Governor and the Chief Minister had lost confidence in him.

Meanwhile, the lawyer acting for the former Operation Delhi defendants, Ben Cooper KC, has said Mr McGrail took a personal interest in the investigation, and made the error of assuming that the national security system belonged to Bland, when it really belonged to the Government.

Mr Cooper said his clients were people of impeccable character who had developed software which kept Gibraltar safe, and if the Government felt they could manage the system better, they were entitled to do so.

Wednesday will see the Government and Mr McGrail Legal teams making their opening submissions.

Closing Submissions will not be held until the end of June, more than a month after all the evidence is heard.

In the most adversarial exchanges yet in the McGrail Inquiry today, the lawyers for the former commissioner have told the Chairman the Chief Minister should have avoided any involvement in a police investigation.

But the Government's lawyers maintained all allegations of corruption are wild are irresponsible unsupported by evidence, and haven't even been brought before the inquiry by Mr McGrail's lawyers.

The third day of the Inquiry into the early retirement of Mr McGrail saw the last of the opening submissions before it begins to hear evidence tomorrow.

The Inquiry, on paper is not an adversarial process.

But today's fiery exchanges resembled a courtroom drama more than the fact finding exercise it is billed as.

We always knew the Government's position was that Mr McGrail retired early because the Governor and Chief Minister had lost confidence in him.

And we always knew Mr McGrail contended that improper pressure had been placed on him to retire by Gibraltar's highest office holders.

But on day three, of the inquiry, both sides fleshed out their arguments considerably. At times, aiming barbs directly at each other.

Mr McGrail and the Government's lawyers brought the opening submissions to an end.

The next stage in the Inquiry is to hear evidence, beginning with Superintendent Paul Richardson, who sought to carry out a search warrant at Hassans as part of Operation Delhi

Grotesque, unbelievable, bizarre and unprecedented

Ian McGrail’s lead Counsel in the Inquiry into his early retirement, Caoilfhionn Gallagher KC, has described the Chief Minister’s actions relating to a search warrant in the Operation Delhi investigation as ‘grotesque, unbelievable, bizarre and unprecedented’.

The operation was a criminal investigation into the alleged hacking of the national security system. A search warrant was executed at the offices and home of Hassans senior partner James Levy.

Ms Gallagher has accused Fabian Picardo of having had lengthy discussions with Lewis Baglietto, the lawyer of a criminal suspect, about how to prevent the police proceeding with a search warrant and how to remove a police commissioner from office.

Ms Gallagher said no matter where you look there is an object of great mass, sometimes visible, sometimes not, but its gravitational pull was always felt. She said that object was the warrant against James Levy, and all other reasons given for the loss of confidence in Mr McGrail were smokescreens.

No interference in Operation Delhi

The Lawyer for the Government, Sir Peter Caruana KC, told the Inquiry there was no interference with Operation Delhi, and neither the Chief Minister, the Director of Public Prosections, or the Attorney General ever said or suggested non-prosecution of James Levy.

He said nothing altered the course of the investigation, and saying “I think it’s a bad decision” in a WhatsApp reply- could hardly be described as an assault on the rule of law.

He told the Chairman Operational independence is one thing

But Police accountability to other powers is another thing and an equal pillar of the rule of law, otherwise what you have is a police state.

Sir Peter Caruana said the Governor Nick Pyle had described the incident where two men died at sea as a result of a collision with a police vessel as the most serious incident causing him to lose his confidence in Mr McGrail.

He said the former Commission withheld essential information - that the collision had occurred in Spanish Waters - for days, from the person most responsible for Gibraltar's foreign diplomacy, whilst giving it to the Chief Minister and the Attorney General.

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