CM says audit 'witch hunt’ of GDC officer breached rights and legal limits 

A section of the 2018-19 Principal Auditor’s report that scrutinised an ex-gratia payment to a GDC officer was “ultra vires, discriminatory and unconstitutional”, Chief Minister Fabian Picardo told Parliament on Monday. 

The report had raised concerns about the officer’s political activity as a GSLP supporter but Mr Picardo said this was a breach of constitutional and human rights and could amount to unlawful discrimination under the Equal Opportunities Act. 

“This part of the report is so heinous that I am challenging it not in defence of any individual, but in defence of a principle that underpins our democracy, the right to political belief and affiliation without fear of selective reprisal,” Mr Picardo said. 

The Chief Minister said this was outside the former Principal Auditor’s constitutional and statutory remit, which was limited to the public accounts of Gibraltar and related financial matters. 

The auditor, he said, had no authority to investigate the political activity of civil servants, adding that if such a review were permitted, it would have to apply equally to all public officers and not just one.  

To single out just one individual was direct political discrimination, Parliament heard. 

“Our civil and public service must be politically neutral in its operations, but not politically neutered in its rights,” Mr Picardo said. 

“If the auditor is to examine political activity among public officers, he must do so with consistency, impartiality, and transparency.” 

And he added: “This was a witch hunt” that was “unfair in the extreme”. 

The Chief Minister was speaking during the seventh day of an ongoing debate on a Government motion challenging aspects of the 2018/19 Principal Auditor’s report. 

The Opposition, which has not yet had an opportunity to speak to the motion, has described it as an “assault on democracy” that seeks to “trash” its author and silence criticism. 

Mr Picardo said the GDC officer had been singled out in an “unprecedented” manner over 12 pages in the audit report in respect of an ex-gratia payment of £260,000 to settle a claim. 

The payment, Mr Picardo said, followed serious allegations against the officer which were investigated and “never made out”, but which created prolonged stress to the individual. 

The Government had been advised that “considerable procedural irregularities” during the investigation suggested “a very high likelihood” of the claim succeeding at trial. 

The Government had settled the claim to avoid the costs of litigation and a potentially higher award in court, not least because the officer had been suspended on facts that had not been proven. 

The officer had claimed for £295,000, as well as for future earnings and future care that could have pushed the figure up to £559,000, Parliament was told. 

“It could even be more, or it could end up as less,” Mr Picardo said. 

“But what is clear, in those circumstances, is that the [audit] report clearly fails to fully properly analyse the potential liability of the Government to pay sums in excess of £500,000 to the claimant if the claim succeeded at trial.” 

The audit report had said there was “at least a chance” that the claim would have been rejected at trial, but Mr Picardo said this also meant there was “at least a chance the claim would be accepted”, meaning greater cost to the public purse. 

The Chief Minister said he had spoken to other officers named in the claim who had refuted the claimant’s allegations about the way she had been treated. 

“They were also the persons involved in making some of the allegations which had not been proven and which had led to the claim,” he said. 

“They insisted in the allegations against them being withdrawn.” 

“They also threatened litigation against the Government as their employer if we did not procure the removal of those allegations from the record.”  

“It is as a result of that that the settlement included a requirement that the claim form should be withdrawn and the allegations made by the claimant against these other officers should be formally withdrawn also.” 

Mr Picardo said the responsible course of action had been to settle the claim and that the audit report was wrong to state that there had been no investigation into the substance of the claim. 

“We acted to protect the public purse,” he said, adding that the Government had that power of discretion in law. 

“We saved in the region of 50% of the sum that could have been the liability ordered against the taxpayer,” Mr Picardo told Parliament.  

“And whatever the identity or political persuasion of the claimant, acting properly and without political bias would have led a government of any complexion to settle on these terms if it was looking after the interests of the taxpayer.” 

Mr Picardo noted too that the former Principal Auditor had sent a 23-page letter seeking “extraordinarily detailed” information on the issue last May 22, six working days before he was due to retire. 

That letter later became “almost word for word” the content of the report, he said, adding there were other examples of letters sent close to the retirement date which later appeared as sections of the report, alongside criticism that questions had not been answered. 

“How can any serious, senior individual expect to get so many answers in such a time frame?” Mr Picardo said. 

“The conclusion an objective observer will reach is that the reality is that answers were not anticipated, that the report was already, in effect, written, [and] that the intention was to publish the most incendiary allegations and give no time for reasonable answers to be provided.” 

Parliament was adjourned until November 5, when the debate on the motion will continue.