GSD and Govt clash over public funding of any potential legal challenge by CM to Openshaw’s findings 

The GSD said the Gibraltar Government was wrong to say that its decision to fund any potential legal challenge to some of the criticisms levelled at the Chief Minister in the Openshaw Report would follow long-established principles. 

The Opposition was reacting after No.6 Convent Place said the Cabinet had formally resolved that any legal challenge pursued by the Chief Minister against specific findings of the Inquiry will be funded by the Government.   

That decision was “a direct application of the Crown’s Indemnity, a long-standing principle in both UK and Gibraltar law, which ensures that public officials are protected from personal liability and legal costs arising from the discharge of their official functions,” No.6 said this week. 

Sir Peter Openshaw, the chairman of the McGrail Inquiry, found that on numerous occasions, Mr Picardo had attempted “grossly improper” interference in a live police investigation, although he also found there was no actual interference and the investigation proceeded its normal course.   

Those criticisms have generated furious controversy and calls for the Chief Minister’s resignation, but Mr Picardo believes they are unfair and could be challenged in a court through judicial review or a constitutional motion.   

He is taking “careful and detailed” legal advice before deciding any next steps.  

But on Tuesday, the GSD insisted the Government’s position on funding was flawed. 

In a statement, the Opposition said that under the Crown Indemnity principle, the state funds the legal costs of a minister who sues or is sued in relation to acts within the scope of their ministerial duty.  

“But how are the findings of Sir Peter Openshaw about the activities of Mr Picardo having meetings with a then suspect or his lawyers or communicating with them in a ‘grossly improper’ way within the scope of his ministerial duty?” the GSD asked.  

“It should also be obvious that acting in a ‘grossly improper’ way to attempt to interfere in a criminal investigation would never be within a Chief Minister’s duty. “ 

“On that basis it is hard to see how the Government has justifiably decided to endorse the spending of public monies to fund Mr Picardo’s private legal challenge on findings that he attempted to interfere with a criminal investigation.”  

“It is also striking that this is apparently a ‘Cabinet’ decision.” 

“In other words, this is evidence of the entire group of ministers backing the payment of Mr Picardo’s legal fees for a private legal challenge in relation to findings that he has attempted to interfere in a criminal investigation and done things well outside his Chief Minister’s role and duties.” 

GOVT REACTS 

Last night, the Government said the GSD’s position was “a profoundly confused attempt to rewrite the principles of administrative law”. 

In a statement, No.6 Convent Place said the GSD was seeking to deny the Chief Minister the right to challenge findings “by assuming those findings are already settled fact”. 

No.6 said the Chief Minister maintains that the allegations of improper meetings or interference “simply did not happen in the manner described by the Inquiry report”. 

“These are the issues which is he therefore considering challenging,” it said. 

“The very purpose of the potential judicial review would be to prove that various of the Inquiry’s conclusions relating to the Chief Minister were reached through a flawed process and an incorrect application of the law, not based on facts before the Inquiry or contradictory to other findings.” 

“In fact, the GSD is attempting to use the Inquiry’s contested findings as a shield to prevent those findings from being challenged in the first place.” 

“They argue that because a report claims the Chief Minister acted outside his duty, he should not have his legal costs covered to prove he acted within it.” 

“This is a nonsensical legal paradox.” 

No.6 said that if a minister is accused of misconduct in the course of their duties, and maintains those accusations are false and legally unsound, that minister is entitled - “under the long-standing principles of Crown Indemnity” - to be funded to challenge them if there is a good chance of success based on “authoritative legal advice”. 

No.6 said the decision to pursue a judicial review would not be taken lightly or out of a “mere political impulse”. 

“It will be based on the senior legal advice,” the statement said. 

It added that the GSD’s “surprise” that this was a Cabinet decision demonstrated a lack of understanding of collective responsibility. 

“The Cabinet have collectively resolved that it is in the public interest to ensure that the findings of any Inquiry are legally sound and that the legal challenge should proceed if that is determined, on the basis of legal advice, to be appropriate,” the statement concluded.