I’m a big fan of updating old legislation. Anyone, like me, who’s spent years deciphering the UK’s Victorian electoral laws will agree that newer, more intelligible statutes are generally a good thing. This is especially the case for ones using antiquated language and complex cross-referencing with other Acts, which can make them almost impossible to understand.
However, in Gibraltar, I have found an exception.
Those following public affairs on The Rock will know there is an ongoing Commission of Inquiry into the circumstances surrounding the early retirement of its former police chief, Ian McGrail. He claims to have been forced out of office in 2020 after executing a search warrant against an associate of the current Chief Minister, Fabian Picardo. In response, the government claims Mr McGrail had lost the confidence of the Governor – His Majesty’s representative in this Overseas Territory – over his handling of several incidents.
The Inquiry, established in 2022 by the Governor and chaired by the retired High Court judge Sir Peter Openshaw, is there to establish the facts for the public. Its legal basis is a law first passed in 1888, and updated subsequently in 1933, 1966, 1983 and 2007. The legislation is short and to the point, giving inquiry chairs broad powers and discretion to carry out their duties as they see fit and without outside interference.
The McGrail inquiry has progressed using this framework for the past two years, receiving several submissions from interested parties and setting out its policies and processes, which until recently were accepted by those involved. So far so good.
Then on 7 March this year, completely out of the blue, the Government of Gibraltar announced it was bringing forward emergency legislation to ‘modernise’ the laws underpinning the inquiry. This has led many, including us at Transparency International UK, wondering why. And in particular, why in such a tearing hurry? Our conclusions so far make for a dim view of governance in the territory.
Let’s unpack.
First, the Chief Minister leans heavily on the need to modernise the existing law, which indeed do have their origins in the 19th century. In interviews he’s claimed this will help the inquiry be more agile and put its policies and processes on a clearer statutory footing. Yes, the law is old, but what exactly has Sir Openshaw been doing wrong to necessitate such a hasty change to his inquiry’s statutory footing? Given we’re about to enter the substantive hearings, with the policies and processes ironed out, what good is it to change them now? This leads us onto the second problem with the government’s argument: timing.
The Governor established the McGrail Inquiry back in 2022. Since then, the Government of Gibraltar has had ample time to consult and bring forward this Bill, which is based largely (although not entirely) on the UK’s Inquiries Act 2005. It’s not as if they’re scrambling to catch-up with recent developments in the UK – the model they’re adopting is almost two decades old. Is it a coincidence, then that on 1 March 2024 the Inquiry announced it was reviewing allegations of inducements given to those providing witness statements against Mr McGrail? That the Bill was brought forward less than a week later could suggest a relationship between these two facts. This, combined with the (apparent) lack of a clear rationale, is enough to raise questions about this legislation.
And there’s more.
The Government of Gibraltar claims the Bill is a carbon copy of the UK Act. This is almost true, but not quite. It includes new provisions that would automatically transfer existing inquiries to the new statutory footing, without need to consult with inquiry chairs. These transitional arrangements are not in the UK law, and are seriously concerning when considering what is.
The Bill, like the UK’s 2005 Act, has provisions that would allow the government to interfere in the independence of inquiries including delaying them (Clause 15), terminating them prematurely (Clause 16), changing their terms of reference (Clause 7), and imposing restrictions on public access to proceedings and documents (Clause 21). The Government of Gibraltar say they won’t use these powers to delay or terminate the inquiry, yet they haven’t included provisions in the Bill that would make this a cast-iron guarantee, and the Chief Minister has alluded to the likely need to restrict public access to information in order to further the ‘public interest’ (see 6:30 here).
Regardless, the sum of these changes tips the balance of power firmly away from Sir Peter Openshaw and towards the Government of Gibraltar. This is particularly problematic when senior members of the government bringing forward this law are also under the current Inquiry’s spotlight. That the Chief Minister will be subject to questioning as part of proceedings, and may well be embarrassed by material disclosed through them, presents a significant conflict of interests. It’s like a player deciding just before kick-off that they not only want to move the goalposts and change the rules of the game, but also appoint themselves as referee. That he has failed to recognise this is testament to how serious the current situation has become.
The Bill is due to be rushed through Gibraltar’s Parliament under emergency procedures in just one day, and only a few weeks before the substantive hearings are meant to begin. Considering there has been no public consultation – indeed the Chief Minister seems to think consultations are ‘for the birds’ (circa 4:40) – and all the other factors mentioned above, there are obviously very serious issues with this Bill and the context surrounding it. In the absence of common sense taking hold and the Government of Gibraltar withdrawing the Bill, the UK Government should take the highly unusual step of intervening in order to safeguard the integrity of Gibraltar's governance.