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Bill sets out powers for UK military authorities over Gib personnel

Photo by David Parody

The Gibraltar Government has published draft legislation to apply parts of the UK Armed Forces Act to Gibraltar, setting out the conditions under which UK military authorities can exercise jurisdiction over their personnel in Gibraltar.

The Bill, which has been months in the drafting, follows the runway standoff in February 2017 in which the Ministry of Defence and the Royal Gibraltar Police became locked in a stand-off over jurisdiction in a criminal investigation involving a serving member of the Royal Air Force posted to the Rock.

The MoD said at the time that the case was a military investigation under UK jurisdiction but the RGP, which was legally obliged to establish whether any offence had been committed here, insisted it had primacy.

The row escalated after military officials tried to fly the serviceman to the UK and prevented local officers from executing a warrant signed by the Chief Justice of Gibraltar.

The RGP blocked the runway to prevent the man being flown to the UK, seizing equipment and arresting three senior UK military officials in Gibraltar on suspicion of hindering a criminal investigation.

Over the past year, the RGP, the Gibraltar Government and the MoD have worked to heal the damage caused by that incident to vital inter-agency relations, and to put in place a legal framework to prevent such a situation from re-occurring.

The framework is set out in the Bill published last week, which has been drawn up after months of sensitive discussions with UK officials and will be debated in the Gibraltar Parliament in the coming weeks.

Once approved, the legislation will define the jurisdiction, powers and competences of UK military authorities and courts over military personnel in Gibraltar in certain defined circumstances.

“The events of February 2017 brought into sharp focus a jurisdictional gap in our law in respect of Her Majesty’s Armed Forces,” said Chief Minister Fabian Picardo.

“This Bill will address those issues whilst respecting the primacy of the Royal Gibraltar Police as the lead law enforcement agency throughout Gibraltar and the Gibraltar Constitution.”

The legislation will apply to members of the Armed Forces who are subject to service law and to civilians who have a close nexus to the UK Armed Forces and are subject to service discipline.

It also applies to members of the Royal Gibraltar Regiment.

The Bill does not apply to ordinary civilians or to civilian property and makes it clear that it does not affect the rights of the individual under Gibraltar’s Constitution.

The Bill sets out the cases where the RGP and the service police authorities shall exercise exclusive, primary or concurrent jurisdiction in Gibraltar and establishes mechanisms for close cooperation between both police forces, including allowing one police force to waive jurisdiction in favour of the other.

It also provides for the conclusion of an operational protocol between the Commander British Forces and the Commissioner of Police, setting out the circumstances and manner in which jurisdiction, power and competence shall be exercised by one or other of them, or jointly.

Such protocols exist in the UK and the Sovereign Base Areas in Cyprus and one will exist in Gibraltar by the time the Bill enters into force, No.6 Convent Place said.

The Bill also creates certain offences in Gibraltar law relating to the armed forces, including desertion and absence without leave.

Mr Picardo added: “The Bill has been worked on closely by the Attorney General and the Ministry of Defence and I want to thank all those involved for producing this complex piece of legislation which I will be introducing to Parliament.”

“As Section 35(2) of the Constitution requires, His Excellency the Governor has consented to the publication of this Bill for its subsequent progress through its Parliamentary stages, given it deals with matters which, we both agree, relate to his areas of responsibility under Section 47(1) of the Constitution.”

Lieutenant General Edward Davis, the Governor, said: “The publication of the Armed Forces (Gibraltar) Bill 2018 marks a significant step forward in the future assurance and progression of the legislative framework for all British Armed Forces personnel and their dependants working and living in Gibraltar.”

“Accordingly, I very much welcome the Bill’s publication and would like to take this opportunity to thank everybody involved in theBill’s drafting; especially the Attorney General and FCO and MoD Lawyers.”

Commodore Mike Walliker, the Commander British Forces, said: “I am delighted that the Armed Forces Bill (Gibraltar) 2018 has been published, and I welcome the opportunity it affords to confirm the strong relationship between service policemen and women on the Rock and their colleagues in the Royal Gibraltar Police.”

“I would also like to thank the Attorney General for his perseverance in seeing this Bill through to publication.”

Pic by David Parody

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