In my opinion ‘Government deficiencies’

By Robert Vasquez

There is more and more palpable evidence of the deficiencies in the constitutional governance of Gibraltar as time passes. They are further worsened by the makeup of Parliament and the existing electoral system.

Reform is needed.
Failings should receive attention earlier rather than later, especially, if a Gibexit ‘deal’ is finalised between the EU/Spain and the UK/ Gibraltar.

Although, attempts at such a ‘deal’ have come to nothing, despite the hugely optimistic pronouncements of Chief Minister Fabian Picardo.

One such insufficiency is the lack of separation of powers between the executive (the political party in government) and the legislature (Parliament including the Opposition) which is supposed to be a check on the executive government aimed at enhancing democracy.

The most recent example is the attempt by the GSLP-Liberal Government to discriminate against private school pupils over university scholarships by making those discretionary.

It is a public outcry that seems to have put a brake on that, rather than any fear of the GSLP-Liberal Government being defeated in Parliament.

As the current constitutional system stands, the possibility of a government being defeated in Parliament is next to zero. It is a most undemocratic system.

Democracy is limited to four-yearly general elections that essentially puts an all-powerful Chief Minister in place, as no Minister wants to lose his/her high salary by causing his/her government to be defeated.

A further deficiency arises from the control (or is it influence?) that an elected Parliament and government, and so Chief Minister, can have over a Governor, despite the constitutional powers vested in that office.

It is difficult for an unelected regime, the governor, to impose itself on an elected body, if that body has a view contrary to that of a governor, even if under the constitution the relevant matter is in the power of the governor.

It is especially so, as that elected body, the government, can take any issue, on which a governor can act on constitutionally, to a vote in Parliament, to the embarrassment of a governor, or in the extreme, to a general election, with the possible (perhaps probable) result that a vast majority of the plebiscite will disagree with the governor and side with the elected government, thereby causing a constitutional confrontation.

The possibility of such an event undermines the actuality of a governor having real power, whatever a constitution may provide. The law and actuality diverge, unless whole or partial direct rule is applied from the UK. In practice, an elected Chief Minister and his/her government will win the day usually.

An issue, that our system forces on us, will come to the fore soon. It is that Chief Minister Fabian Picardo, by his own admission, will step down as Chief Minister.

The vacuum that a Chief Minister leaves on giving up office is massive, irrespective of whether one is or is not a supporter of him/her or his/her party.

A Chief Minister under our current system exerts huge power generally. Also, under the constitution certain matters can only be debated in Parliament with the permission of the Minister responsible for finance, who invariably is the Chief Minister.

Those are bills “for imposing or increasing any tax, rates, or duty, for imposing or increasing any charge on the revenues or other funds of Gibraltar, or for altering any such charge otherwise than by reducing it, or for compounding or remitting any debt due to Gibraltar … or proceed on any motion the effect of which would be to make provision for any purpose aforesaid.”

In short, the Chief Minister controls most financial matters pertaining to government, as Parliament is unable to deal with most such matters without his/her consent.

The administration can be brought to a halt by a Chief Minister.

All in all, Gibraltar, when Fabian Picardo steps down as Chief Minister, will be faced with being governed by a new administration, be it the GSLP-Liberal or a different elected party, without any continuity.

It is a continuity that to some degree is provided by the public/civil service, but it is one that has been to a great degree lost over the last 40 odd years, and which future governments should strive to recover.

Of course, continuity is lost whenever there has been or is a change of government at a general election, but there are better electoral systems that allow for a spread of governance and a wider diversification of responsibility.

In that manner a change of Chief Minister is not the ‘earthquake’ event that it can be today.
There are bespoke proportional representation electoral systems that would encourage more people to stand and more parties to have MPs. Those should be sought out and considered with appropriate expert guidance.

The size of Parliament needs to be increased also, to allow for a separation of powers between the legislature and the executive. Alternatively, an adapted USA-style system would need to be sought by which that separation is achieved electorally.

Appropriate expert advice should be obtained to rectify what are obvious deficiencies in our current constitution which has been limping on now for 18 years. Hopefully a Gibexit ‘deal’ will prompt constitutional change and so that advice, whilst remaining British.

I hope to be well enough to stand (yes again!) at the next general election to use that as a platform to carry on promoting these and other democratic ideas. Oh, and to continue griping on about corruption. I am rather proud of having brought that word into our world of politics, but action is still needed.

Robert Vasquez, KC, is a retired barrister and political commentator. He stood as an independent candidate at the last general election on a platform of democratic reform.