Democratic legitimacy?

By Nick Cruz

As I follow the Principal Auditors Report 1 and 2, and the McGrail Report, I ask myself this simple question. Does a government that has so clearly devalued the trust of its electorate really have any democratic legitimacy left? If trust was a currency, they now are well into the red. So, what happens next.

The GSLP Government scraped through by a whisker of 150 votes in October 2023, on the promise by Mr Picardo that it was 99.9% on the way to a Treaty. I believe this to have been untrue or a knowing exaggeration as over two years later it is only now materialising. He promised reform, both political and other good governance reforms, including an “Anti-Corruption Authority”. It was a mirage (perhaps for reasons we now know). Instead, we have had PAR 1 then PAR 2. This followed by a farcical charade of a seven-week abusive Parliamentary motion. The purpose was to sanction Mr Sacramento (the Principal Auditor) for calling out (as required by law) what the Chief Minister himself described in Parliament, as a report that presented an image of Government corruption, nepotism, and waste (unfairly he would say).

And so now, just before Christmas the much delayed and long awaited McGrail Report finally materialised. Mr Picardo said before the last election, it would reveal “the truth, whole truth and nothing but the truth”, and so it did. Park the extraordinary interpretation, or spin given by him in his Christmas Ministerial Broadcast, that most would suggest was delusionary, what does it tell us?

It reveals behaviour by him that has been described by a retired High Court Judge (who has presided over criminal courts and Public Inquiries for decades) as sinister, inappropriate, obviously inappropriate, grossly inappropriate, cynical and deceptive. Sir Peter Openshaw (who himself in the Report refers to his 20 years as a criminal prosecutor) does not reach for such language lightly. His report apart from being forensically incredibly astute, was also very empathetic whenever possible, to all core participants and witnesses (including the Chief Minister). And so, it makes it all more condemnatory when this language is employed to describe the Chief Minister’s actions.

What legal consequences arise from the Report and who they may bite on (if any) are for the law enforcement or regulatory bodies to engage with. In the UK many Public Inquiries have led to civil proceedings and criminal investigations, some followed by prosecutions. From Grenfell Inquiry to Infected Blood Inquiry, Bloody Sunday (Saville) inquiry, to Hillsborough Independent Panel and later fresh Inquiries have all been followed by investigation and in the case of the latter prosecutions, ranging from manslaughter, to perjury, to misconduct in public office, to perverting the course of justice. Gibraltar can be no different, as our Police Act and Constitution do not allow passivity. At least the Rule of Law (if not dead here) dictates there must at the very least be an investigative process. No doubt the guardians of the Rule of Law, and our Constitution (if not conflicted) will understand this.
Turning to the recommendations’ aspect of the Report, and with those Rule of Law guardians in mind, we should fairly ask how they will now navigate the obvious conflicts. The GPA and the new Steering Group on reform are incapable of performing their roles with any public confidence whatsoever. His Excellency the Governor (who in this author’s opinion has done a sterling job so far) has arrived only to find unprecedented challenges.

He could not have understood the makeup of our very own “Gotham” in just a few moments. With benefit of the Inquiry Report he has Sir Peter Openshaw’s guide to the Galaxy. What he may have not seen, or immediately understood, is screaming at him now. There is no conceivable way that the public can have confidence in the constitution of the GPA or the Steering Committee into GPA and RGP reform.

The Governor’s Co-Chair (on the Steering Committee) the Chief Minister is the primary actor identified very critically by the Report, and the Attorney General played an important part in this ugly tale (albeit to be fair he avoids any real substantive rebuke). Even the current Chairman of the GPA, whilst a KC of impeccable reputation, cannot avoid the obvious conflict (or at least perception of conflict) due to his relationship through Hassans with Mr Picardo. At the heart of the report Sir Peter Openshaw decried the failure to avoid conflicts and conflict management.

Those who have conflicts (or perception thereof) cannot be charged with reform or expect public support or confidence. Of course, a reconstituted, conflict free GPA and Steering Committee on reform is much needed, but their credentials are key if public trust and consent is thought to be important, as I’m sure it is.

Then, parking legal consequences of the Report (if any), there is an insurmountable political question that cannot be ignored.

Can the Chief Minister remain in office?

Well, until displaced by his party, and or colleagues, or any other events, the short answer is surprisingly YES.

Should he resign as Keith Azopardi, the Leader of the Opposition, and the GSD and many others suggest? Of course he should. If he retained any political dignity, he would own his mistakes, apologise to Mr McGrail, and to the RGP former leadership (he so maligned) and to the Public at large, and then go.

Perhaps hoping they would remember his 20 plus years in politics for more than its ending. After all there was, if we are fair, much to applaud. In the UK or any other democracy, he would not even hesitate. It should be no different here if he cared just a little bit about us all.

Will he? I doubt it. At least his Ministerial Statement of the 23 December suggests he will prefer to double down on his deceit of the electorate. Preferring to present the Report, uniquely and perversely, as a vindication, and not consequential for him.

Can his Ministerial colleagues continue to support what can only now be described as a politically corrupted Government (that has completely lost the trust of its electorate)?

In theory, the sad answer in our current political set up is (given their numerical advantage in Parliament) YES, they can. However, they each very personally must decide whether they wish to be remembered for this. If they support Mr Picardo unconditionally, they also own all his sins, and all his behaviour. They cannot pick and choose. This will deliver infamy of the worse kind for them all, collectively and individually.

One would hope there remains some deep desire amongst one of them (at least) to be respected. Power however intoxicating cannot trump everything, surely? The next few weeks will answer this.
Even if they do lamely soldier on for 18 months can they claim democratic legitimacy?

The answer is most definitely NO. No one voted for this in 2023. No one can accept that they now truly represent the standards and aspirations of the Gibraltarian electorate.

Gibraltar, now up for the Banana Republic award of 2025, cannot be a pariah fiefdom of selective narrow interests, and we the electorate cannot only serve the purpose of serfdom, to those selfish nepotistic financial and political interests. Sir Peter Openshaw was right when in the Report he stated: “to equate the personal interest of a small circle of rich powerful and influential individuals in Gibraltar, many of whom are professional colleagues (or former professional colleagues), and even friends , with the interest of Gibraltar itself may tend to encourage or conceal misconduct or inappropriate and improper interference in official business or public affairs.”

Mr Sacramento and Mc Grail who have spoken truth to power and faced consequences should be thanked and celebrated, but they are an increasingly rare species. It worries me that ordinarily good and honest people (in all walks of life) are repeatedly making decisions that reflect genuflection to power, nothing more. But be in no doubt, every day that passes, by analogy, this rot, this cancer, grows, making the recovery that more difficult.

We need a root and branch purge of those interests, that the McGrail Report and PAR reports so brutally has exposed, and we must once again re-invent ourselves as a decent honest country. Tolerant, inclusive respecters of the Rule of Law and moral certitude. A land where equal opportunity is not based on sycophancy towards Mr Picardo, the GSLP and or a chosen few. We did this in 1996, and we can do it again. De-bananafication must be possible? We must change direction, importantly looking back to ensure those accountable must pay, and forward to ensure with radical political reform, that it never repeats itself.

And so, I challenge the Chief Minister and all the Ministers of this Government to renew their vows (their mandate) in either a general election, or at least a by-election caused by the Chief Ministers much required resignation (or of any Minister that retains integrity). If they really want any democratic legitimacy, they must now earn it afresh with everyone now having: “the truth, whole truth and nothing but the truth”, in their possession.

Nick Cruz, KC, is a local Barrister and formerly leader of the PDP. He represented the interests of the RGP during the McGrail Inquiry.