Chief Minister’s Speech On Second Reading Of Bill For Inquiries Act 2024

Written by YGTV Team on 22 March 2024.

Here are the speaking notes used by the Chief Minister in his speech this afternoon in Parliament on the second reading of the Bill for the Inquiries Act 2024:

I have the honour to move that the Bill be now read a second time. 

INTRODUCTORY COMMENTS 

Madam Speaker, this Bill updates and modernises the laws of Gibraltar in relation to the convening and conduct of public inquiries. 

And that, Madam Speaker, is ironically all that it does. 

And yet, Madam Speaker, this Bill has become an increased topic of debate in recent days, both in Gibraltar and abroad. 

So, before I begin discussing the substance of its clauses and the amendments offered by members of the House, let me first re-state that through this Bill, as with every action we take in our executive offices, the only thing the Government is trying to achieve is to protect our country and our people. 

And going to the most recent aspect of controversy raised by others outside this House, I want to be clear that this bill will – in effect - ensure that, in future, the final decision on what information is made public from inquiries rests with Gibraltar’s Supreme Court judges and the judges of our Court of Appeal and the Supreme Court in London sitting as the Privy Council for Gibraltar. 

That is the reality of what this Bill will do in respect of information put before inquiries – the issue that the Honourable the Leader of the Opposition has recently been commenting on - and I will explain that in more detail in my speech on relevant parts of this Bill as I go through it. 

Government here, as it does in the UK, whose gold standard laws we are incorporating through this bill, will have the power to protect the public interest – not our interest, our partisan interest or our personal interest but the public interest - by ensuring that any sensitive information that could damage Gibraltar is not put into the public domain. But the final decision on whether the Government has acted properly or not will, rightly, be with our Supreme Court judges, who rule on any application through the judicial process which is completely independent from all and any politics. In the end, therefore, the ultimate and final power of decision will rest with the Supreme Court and not with Convent Place. 

This is right for all of us. 

Not just the government of today but future governments and future citizens of Gibraltar for another 150 years if this Act stays on the statute book as long as our current Commissions of Inquiry Act has stayed on our statute book to date. It should give our people the confidence to know that inquiries can investigate whatever they need to, in order to make satisfactory conclusions in the public interest. While, in that same very public interest, governments – chosen freely and fairly by the People by direct, universal suffrage of the people of Gibraltar, whether by a wide or by a narrower margin returned to Office, will be able, in good faith, to act to make sure those hostile to Gibraltar cannot access sensitive information that may threaten our people. And even then, always with the guarantee that our independent Supreme Court judges will be able to assess the probity and actions of any government that purports to act in this way, free of politics, and judges of the Supreme Court will potentially be able to allow whatever they believe needs to be publicly known to be made known. That is our system of Government not just in relation to these matters and this Bill and this Act if it becomes a law today but generally in relation to executive power. 

Like everyone in this House, I am a politician, and I can therefore understand why the Leader of the Opposition is trying to make controversy around the substance, form and timing of this Bill and my certification of it, which I did yesterday as you kindly indicated to the House. Well, Madam Speaker, I am also a lawyer, so I can understand why lawyers representing Mr McGrail who is the subject of the Inquiry currently on foot are vilifying me and also trying to prejudice public opinion against me, against the Government and even against this Bill. I am surprised by how it is being done, and the network internationally being deployed in doing so, but that is clearly just another tactic designed to put pressure on the inquiry to find in the way that they would wish it to find and indeed even to characterise the inquiry as something other than an inquiry into an early retirement. 

But, in light of my opening remarks, I think it is incumbent on this House to consider this Bill calmly and with the interests of our people as our guide. I urge the Leader of the Opposition, in particular, to put his party political interests to one side and to think with a Gibraltar First hat on – and not just a GSD hat on. I remind the Leader of the Opposition of his words: ‘I’ve always said that we would cooperate with the government on issues of public interest.’ As I discuss with other Members of this House in the course of this debate the reality of underlying our reasons for moving this Bill at this time, and in this fashion, I urge him to consider whether he really opposes a law which will, in effect, allow our independent judiciary the final say to rule on what information is right to disclose to the public from inquiries, when it involves public interest considerations. 

Because Madam Speaker, that is the effect of our changing the law today on the convening and conduct of Public Inquires: To modernise the law and to ensure that the Government can act to protect the public interest BUT ALWAYS with the underlying, indeed I would say copper bottom guarantee of allowing a review of that decision by our independent judiciary. This therefore will make the final decision on public disclosures totally independent of politics and put it in the hands of independent judges. In doing this, we are making Gibraltar’s law entirely in keeping in every material respect and in every point of substance with the law in England and Wales, something that should be uncontroversial and welcomed by all. Gibraltar, the House will agree, has been well served historically by being guided by English law as the model for our Common Law system. I trust everyone, on all sides of this house, continues to believe it will be well served for Gibraltar to continue to follow English law models in the future, exactly what we are doing by bringing this Bill and exactly what we have done and have had with the current Act that we’ve had for 150 years, which is in effect a carbon copy of the 150 year old equivalent under the 1888 Act. 

• So our modernisation of this Bill will be achieved by repealing the current Commissions of Inquiries Act 1888 and replacing it with the proposed new Act in this Bill, which replicates in every material respect, the substantive provisions of the UK legislation relating to public inquiries, which are contained in the UK’s Inquiries Act 2005.
• Differences. There are nonetheless a number of necessary differences between the UK Act and the Act in this Bill which relate to the usual adaptation for the specific characteristics of Gibraltar as is ALWAYS the case when transposing a piece of UK legislation into our law. I will take the House through the main differences and the clauses of the Bill:
   Ref UK Devolved Administrations.
  The Bill excludes all the UK Act’s provisions which exist only to accommodate the existence of the Devolved Administrations in the UK and which allocate powers and competences between central government Ministers in Whitehall and those Devolved Administrations depending on which has the power in a particular area of activity. Those provisions obviously have no application in or relevance to Gibraltar.
   Powers are exercisable by Government, not Minister. 

Under the UK Act, the regime is that each Minister has the power to convene, suspend or terminate inquiries, and to exercise the various other powers set out in their 2005 Act in relation to their area of ministerial responsibility. The Government has opted in Gibraltar for the Bill to retain the existing position in Gibraltar whereby those things are done by the Government collectively, rather than by a single Minister acting alone. Again, in the context of the Gibraltar model, it makes more sense to stick to “Government” rather than including a reference to a specific Minister, but this is not an issue of any divergence of substance from the UK Act. 

 Appointment of Assessors 

The power for the chairman to appoint “assessors”, which Honourable Members will see in this Bill is there to assist an inquiry after an inquiry has been established by the Government vests in the chairman in the proposed Act in Gibraltar, as it does in the UK. However, given the potential additional financial cost to public funds, the Bill makes the exercise of that power subject to the consent of the Government (see clause 13(2)(b)). This is already, however, already a new power that adds to the arsenal of powers available to an Inquiry chairperson. 

 Prosecution of offences 

Under the UK Act: 

• (i)  Some offences (those under proposed clause 29(1), i.e., a failure to comply with a notice by the chairman under clause 23 to give evidence or produce documents) may, under the UK Act, lead to offences and prosecutions instituted by the Chairman of the inquiry. Madam Speaker, the advice the Government has is that that would be unconstitutional in Gibraltar because section 69 of our Constitution requires the Attorney General to have power to institute proceedings.
• (ii)  Other offences (the other offences created by proposed clause 29(2) and (3) of the Act) may, under the UK Act, be instituted only by or with the consent of the DPP if the Chairman of an Inquiry seeks to start those proceedings.

Proposal under the Bill: 

• The Bill proposes (see clause 29(6)) that, in Gibraltar, the institution of proceedings for all offences should require the consent of the Attorney General. The Government is advised and believes that this better reflects the Attorney General’s primacy in respect of prosecutions under our Constitution, and in that way ensures the Constitutionality of the Bill. 
• Amendment 

Madam Speaker, the Government is advised by the draftsman of the Bill as published that there is a drafting error in the Bill in this respect. Clause 29(6), as drafted, has the effect of giving the chairman the power (albeit with the consent of the Attorney General) to institute criminal proceedings for an offence in respect of all offences. As I have just explained, that is not even the case in the UK. 

I have given notice of an amendment in this respect and shall take this House through the detail of that amendment when we come to the Committee Stage and Third Reading. 

 Transitional and saving provisions 

• (i)  Madam Speaker, importantly, some of the transitional and saving provisions in clause 37 of the Bill also do not replicate substantive provisions of the UK Act and are not in the UK Act.
• (ii)  Proposed clause 37 subclauses (1), (2) and (3) are in the UK Act. Proposed subclauses (4) – (8) are not in the UK Act.
• (iii)  The effect of sub-clauses (4) – (8) is that:
   when operative, the new Bill will apply to the ongoing McGrail Inquiry;
   it will do so without affecting the validity and continuity of everything done previously by the Commissioner and others in that Inquiry; 

•   it will do so without affecting criminal liability of any person for anything done or not done previously that may constitute an offence, it’s a saving provision so to speak; and
•   so, to be clear, everything done to date in respect of the Inquiry currently on foot will be saved and any liabilities incurred to criminal prosecution or sanction will remain, there is no wiping the slate clean.
• (iv)  Madam Speaker, obviously the timing of this Bill is SO THAT the new Act, will apply to the McGrail Inquiry.
• (v)  And to be entirely clear, as I mentioned at the start of my remarks, that means that the ruling on what is made public from the McGrail inquiry will not, in the end, have to be a government decision. Whatever decisions a government may make about disclosures from this, or any other inquiry in the future (noting that there could indeed be none), will be reviewable in court. And our judges, independent from the Government, will be able to make the final decision, if called upon, on what is to be put in the public domain and based only upon their independent view of Gibraltar’s common good and our national interest.
• (vi)  This should make clear that no one should have an issue with the fact that Government considers that it is both desirable and appropriate that the Main Hearing, Report stage and post-Report stage of the McGrail Inquiry should proceed under this much more modern, British legislative framework because: 
• (a)  It places procedures, rights and powers on a more modern, proper, well- tried and tested statutory footing, and provides legal clarity as to the availability of certain powers to the Commissioner. This includes, for example, the power to require evidence to be provided in the form of written statements (which is in section 23(2)(a)) and to require production of documents etc without the need for a summons or appearance before the Commissioner (which is in section 23(2) in sub paragraphs (b) and (c))
• (b)  This Bill will also enable the exercise of powers by the chairman and the Government, in the discharge of their respective public responsibilities, to be undertaken by each of them in accordance with the proper balance in that respect, identified and established in the UK Act and tested in UK Case Law. As I have already said put upside this House, THAT INCLUDES THE POWER TO PROTECT THE PUBLIC INTEREST BY MEANS OF A GOVERNMENT RESTRICTION NOTICE UNDER PROPOSED SECTION 21(2)(a) of the Act. Madam Speaker this is a power which is held by UK Ministers and which it is right that the Gibraltar Government should also have in a manner that does not oust or even try to oust review by a Court of the manner of the exercise of that power in the usual way. In other words, like every other power exerciseable under our laws by Ministers or the Government, and given the division of powers which guarantees the sacrosanct Rule of Law principles by which Gibraltar and the United Kingdom are governed, the right to exercise this power will be subject to potential judicial review by a judge of the Supreme Court of Gibraltar. 

This is, I would have thought what everyone in the house would agree, the best way to ensure that decisions of this nature can be properly taken and then scrutinised and considered independently of the politics or political agenda of any party or individual. 

I am at a loss to explain why the Leader of the Opposition would not want this to be the case. 

Perhaps there is a reason why the GSD would not want rulings about public disclosures being made by Ministers in Gibraltar as they are in the UK and subjected to review by independent judges, backed by the force of our law, as is the case in the UK? 

I dare not speculate about the motives of Honourable Members Opposite. 

I will leave it to them to explain to our people why they do not want a law that allows our judges, backed by the law, to be able to decide whether to support or rule against a government’s decision on disclosing information from an inquiry. 

It should, by now, I hope to all those in the House be abundantly clear that this bill secures the rights, liberties and security of Gibraltar and its people. 

It would be a strange Member of this House who thought any government could use a bill, which gives legal backing to the independent judgement of the Supreme Court of Gibraltar with regards to public disclosures from inquiries, for its advantage. 

ADDITIONALLY, I want to make clear that this is not an untrammeled power and it is certainly not a power exerciseable by a Minister or by a Government to in any way protect the Government in a party political sense or a Minister in any personal sense. 

This is, obviously, well known to the Leader of the Opposition and anyone with legal training. 

But I want to be explicit in explaining to our citizens that this is power that the Government I lead and, I dare say any Government, would never use for the purposes of achieving any personal or partisan advantage or to oust any investigations or inquiry into any matter that created any liability or was designed to avoid any such liability. 

As I have said outside of this place, Madam Speaker, the exercise of this power to issue a restriction notice would be available ONLY in order to protect the general public interest. 

That power exists in every democracy and is used by Governments across the EU and the developed world, not least in the UK in this exact form. 

Given what I have said already, it should be clear to the House, as I have said outside of here, that this would be a power, when exercised that would be exercised for the benefit of every Gibraltarian and resident of Gibraltar. 

The powers of the Government would be exercised only if it were of the same benefit to a person calling for an inquiry as if it were for the person the subject of part of the work of an inquiry. 

As much to the benefit of Ian McGrail and his children and Keith Azopardi and his children and any other Gibraltarian in equal measure. 

That is to say, the interest or benefit of every Gibraltarian and resident of Gibraltar in equal measure. 

Because this law, in this respect and in this Clause, is designed to ensure that ALL interests are protected should the need arise to use the power to protect them. 

But also with the legal safeguard and guarantee of independence of the potential always for judicial review by our independent Supreme Court if invoked by any party with the necessary legal interest. 

I want to be clear about that also that in the event of this power having to be exercised in the context of any inquiry or the current Inquiry, that the use of the power would only prevent reporting and NOT inquiry into the issues subject to such a notice. 

To that extent, there is no different to an application for matters to be heard in camera, which can happen in any case in any matter before the Supreme Court. 

In this context, the UK Government determined that the nature of the public interest that could arise in an inquiry setting should permit for a Government to make the relevant notice in the Public Interest and for a judge to be able to review that, rather than having to apply to a judge and await the judicial determination of whether or not the public interest was there. 

But to restate: This bill will not prevent anything from being investigated by an inquiry, including the current inquiry, and, if a government feels it is in the interests of our people not to make certain details public, the final decision over whether this happens rests with the independent courts of our country, not our politicians. 

I also want to make this important point, Madam Speaker. 

I have heard everything that the Leader of the Opposition has said already about this Bill and about this section in particular. 

I want to put something on the record of Hansard for political posterity. Every Gibraltarian and every resident of Gibraltar should know this:
If we had lost the election, as we almost did;
If the GSD had won the election, as they almost did; 

If I had not become Chief Minister on this occasion, as I almost did not; and 

If the Honourable Mr Azopardi had become Chief Minister, as he almost did, 

HE AND THE GSD WOULD BE MOVING THIS BILL TODAY IN IDENTICAL TERMS AND FOR IDENTICAL PURPOSES. 

He would have received the same trusted advice we have received. He would understand the issues as we understand them.
And he would be legislating as we are legislating.
THAT IS THE REALITY. 

So I urge the Leader of the Opposition, by all means, to make the points he needs to make, to raise the issues he wants to raise and to make the arguments he wants to make, he doesn’t need my permission to do so. 

However, I am pleased to invite him to do so, when he makes his contribution, safe in the knowledge that, whatever he wants to say to whip up people against me or my Government, he need have no real concerns of any substance about this Bill. This Act when it is passed and assented to and the effect of it on any current or future Inquiry will be of no concern to him or anyone else who is genuinely concerned about the rule of law. 

The only thing he does need to concern himself about is explaining to the people of Gibraltar what he so dislikes about the Government having a power in this area, as we have in others, to act in the public interest, but having that power subject to our judges being able to independently rule on the exercise of the power being given to the Government in this Bill. And this is not the only Act in which we will have powers to act in the public interest, Madam Speaker, we have many powers to act in the public interest in many Acts, many of them which we inherited from laws made by the GSD. 

The Gibraltarian people will have heard today how this Government is putting their rights on a stable and secure footing, how we are legislating to protect the public interest, both today and in future, with the legal protection of our independent supreme court’s ability to rule on these matters, in the very best traditions of English law and our established principles of the division of powers between the legislature, the executive and the judiciary and the well established and entrenched rules of Judicial Review. 

They will, I’m sure, be wondering why the Leader of the Opposition would seem to object to all of this. 

They will wonder why someone who has repeatedly tried and failed to gain the confidence, to gain their confidence, to lead Gibraltar could oppose measures that ensure decisions about inquiries like this will be made by freely and fairly elected Governments subject to the review of independent judges, who have the right to rule against the government of the day if they consider that appropriate. 

I hope, therefore Madam Speaker, that makes the Government’s intentions sufficiently clear in respect of that particular power, whether or not the Opposition will want to continue to hyperbolise here in this debate, as the Leader of the Opposition has done outside of here, and despite everything I have already said. 

Nonetheless, let me conclude this introductory part of my address by saying that I hope, having heard my remarks, the Leader of the Opposition will now signal his intent to support a law that will, in effect, give our Supreme Court judges the final say in law on the matters discussed in relation to what should be published by an inquiry. 

I would hope he will confirm the Opposition’s agreement with this Government’s stance that once we have exercised a power to act in the public interest it should be independent judges, not politicians, that should be the ones ultimately deciding if we have exercised our powers properly, independent of politics, backed by our laws. And I should remind everyone in this House, Madam Speaker, that when I’m referring to judges I’m not referring to Chairmen of inquiry or Commissioners in an inquiry, I’m referring to judges of the Supreme Court, I’m referring to judges of the Court of Appeal and judges of the United Kingdom Supreme Court sitting as the judicial committee of the privy council. 

Therefore, Madam Speaker, I certainly hope although I won’t hold my breath that the Leader of the Opposition’s alleged moderation that he reminds us of, which he says characterises him, although we don’t often see that in this House, will actually be reflected in what he says today about this Bill. 

Finally, Madam Speaker, before I go through the Bill Clause by Clause, and to add further assurance to the House and the nation in the context of the exercise of these particular powers, I want to give the House an UNDERTAKING. 

Honourable Members will know that I hesitate to give undertakings to the House. I don’t like even to tell them that I’m going to reply to their letters in case I forget. So when I say I’m giving the House an undertaking I want the House to understand that the Government, through me, is going to make a promise, in effect, to the House, which it will ensure that it keeps. 

In the event that the powers ascribed to the Government under this Bill, when it becomes an Act, were to have to be used in the context of the inquiry currently on foot into the early retirement of Ian McGrail, then the Government will: 

NOT act without a resolution of the whole Cabinet; 

We will act, then, after that resolution through the Minister for Justice, who, as the House will know, does not just take an oath as a Minister, as all of us on this side of the House have done, he doesn’t just take an oath as a Member of this House as all of us in this House have done, 

BUT additionally, also takes an OATH to protect and defend the RULE OF LAW. 

Now, I consider that each of us on this side of the House in the exercise of our executive capacities has that as an inchoate obligation as part of our functions as Ministers of the Crown to respect and defend the rule of law, but, given the references to my involvement as a Core Participant in respect of the inquiry into Mr McGrail’s early retirement, I hope that this will also show the good faith in which the Government is approaching this. 

THE CLAUSES OF THE BILL 

Madam Speaker, as I have already said, the substantive provisions of the Bill replicate the substantive provisions of the UK Act in respect of those provisions, save as I have already indicated. 

1. Hon. Members will have read the Bill and it may therefore be that they consider its substantive provisions to be self-explanatory, a desirable improvement in fact on our current very old Inquiries legislation, and non-controversial.
2. Clauses 3-14 deal with:
   2.1 The Government’s powers in relation to: 
• (i)  the establishment of inquiries,
• (ii)  the appointment of an individual or a panel of individuals to conduct them,
• (iii)  the setting out of the terms of reference of the Inquiry.
3. 2.2Clause 8 imposes on the Government a new obligation to engage with Parliament in relation to inquiries that it may be proposing to establish or may have been established. I cannot imagine that anyone would even try to make a credible argument that this is a bad thing – but I may yet be surprised even in this respect of this clause by the ability of honourable GSD members opposite to reverse alchemise the good into bad and seek to turn every social and legal advance proposed by a GSLP Liberal Government into political kryptonite, which might explain the colour of the Bills. 
• 2.3  Clauses 11 requires that appointees to panels must be impartial and sets out the criteria for that. This is the criteria that is now objectively used in the United Kingdom for appointments and can, surely, only be welcomed – but I refer the House to the point I made a few moments ago about honourable members so often appearing to take the attitude of the witches in Macbeth who remind us of the hypocrisy of those who cry that ‘fair is foul and foul is fair’ as we continue to ‘hover the through the fog’ that surrounds this debate.
• 2.4  Clause 13 introduces the new power to appoint assessors to assist the inquiry to which I referred earlier. Again this is adds a new power to an inquiry chairman and can only be a good thing.
4. Clauses 15 – power to suspend an inquiry
   Clause 15 gives to the Government power to suspend an inquiry for such period of time as appears to the Government to be necessary for one of only two specified reasons:
   (a) The completion of related investigations; or
   (b) The determination of related civil or criminal proceedings.
   It is important to note that this power to suspend is therefore not available for any other purpose or reason. 

Madam Speaker there was rife speculation about the potential for the Government wanting to legislate to use this power. I suppose speculation rife by those who read the title of the clause and didn’t go on to read the substance of the clause and proposed section. 

This is a NEW POWER in fact which does not exist in the 1888 Act but is in the 2005 UK Act which is very specific in its ambit and would NOT appear to be capable of being made controversial in any material respect once read and understood. 

4. Clause 16 – power to end an inquiry 

Clause 16(1)(a) provides that an inquiry ends when the report is delivered to the Government and the chairman notifies the government that he has fulfilled its terms of reference. 

Clause 16(1)(b) gives the Government the power to end an inquiry earlier than that, at any time, by giving notice to the chairman. 

Before doing so, the Government must consult the chairman of an inquiry. 

Madam Speaker, the Government is aware of ill intentioned or ill informed comment suggesting that the Government might have been intending to exercise the powers in these sections in some way in respect of the McGrail Inquiry. 

Indeed, there has been negative international comment prompted by such ill intentioned or ill informed speculation on the part of some including by some legal advisers involved in that Inquiry. 

NOTHING COULD BE FURTHER FROM THE TRUTH. 

I formally put on the record of Hansard that it has not been, it is not and it is impossible for the Government to envisage circumstances in which it would wish or would be persuaded to end the Inquiry into the timely early retirement of Ian McGrail as Commissioner of Police. 

In fact, as I have confirmed before from here and outside of this place, the Government is very much looking forward to the commencement of the hearings in that Inquiry and, in particular, to the release of ALL relevant evidence adduced before that inquiry. 

I said here, Madam Speaker, when I agreed to convene the Inquiry, that I looked forward to that inquiry identifying the truth, the whole truth and nothing but the truth in respect of the matters which are being inquired into and which are the subject of the terms of reference of the inquiry. 

Having seen the evidence filed to date, I am even more looking forward to all of the being made public. 

I therefore want to confirm to the House that neither I nor any of my colleagues in Government would wish to see any delay, suspension or cancellation of the current inquiry into the early retirement of former Commissioner of Police, which, let’s remind ourselves, is what the inquiry is about and is entitled to be about, despite the very pejorative, untrue references that others make about what the inquiry is about in order to do maximum damage to Gibraltar as they do so, without regard to the collateral consequences of the effect of their misnomer. 

As a result, Madam Speaker, I will be moving an amendment at Committee Stage to specifically exclude the potential application of the power to end the current inquiry on foot. 

That will provide legal force to the Government’s explicit position that we were never intending to exercise this power in this way in respect of the inquiry currently on foot. 

I should also clarify that we will not be accepting the amendments proposed by the Leader of the Opposition and he may, given what I have said, decide that he does not want to move his own proposed amendment, he may have seen my much more extensive proposed amendment. 

5. Clauses 17 and 18 – power to convert other inquiry into an inquiry under this Act 

• Clause 17 empowers the Government to convert an inquiry started under some other Act, that is to say not an inquiry convened under the Commissions of Inquiry Act, into an inquiry under this new Act.
• But, Madam Speaker, it is important to note that this applies to inquiries started under other (subject-specific) legislation that may contain a power to conduct inquiries. It is not a reference to inquiries started under the (to be repealed by this proposed new Act) Commissions of Inquiry Act 1888.
• This is evident from two UK provisions in the Bill, namely (a) clause 17(1), that provides that “section 17 applies whether the original inquiry was caused to be held before or after the commencement of that section” and (b) clause 37(3) which provides that extant inquiries under the Inquiries Act repealed by this Act will continue as if the former had not been repealed, so there would be nothing to convert.
• Given that there are no such inquiries in Gibraltar, and no such power to convene such inquiries elsewhere in our law, these UK sections are entirely superfluous for our law.
• Despite that they have caused interpretative confusion even in those who have wanted to interpret the clauses in good faith.
• • For that reason, Madam Speaker, I will be moving an amendment to delete these two irrelevant clauses at Committee Stage. 

6. Clauses 19 deal with the procedures of and the taking of evidence by an Inquiry.
7. Clauses 20 - 23 deal with public access to inquiry proceedings and information. 
• (i)  Clause 20 ensures that, subject to clause 21, the public shall have access to inquiry proceedings and information, by 
• (a)  either being able to attend the inquiry or to see and hear simultaneous transmission of inquiry proceedings; and
• (b)  being able to obtain and view a record of evidence and documents given, produced or provided to the inquiry. From memory, I think during the course of some of the inquiry’s public hearings some of the lawyers in the inquiry, not the Government’s lawyers, have referred to wanting to see a clause like this in our law and being disappointed that there wasn’t such a clause in our law.
• (ii)  Clause 21 empowers both the Government and the chairman to impose restrictions on access to certain kinds of identified information that should not be disclosed or made available to the world at large through publication, that’s the clause that we have been talking most about.
  It also empowers both the Government and the chairman to restrict public access to the hearing when it is dealing with such restricted information.
  Continuing matters in Camera, so to speak, is a power that was always available to the Chairperson of an inquiry and this power simply extends the determination of that to also include the Government’s views.
  This power relates only to information, documents or other evidence which need to be restricted on one of three grounds: 
• (a)  It is legally required to be restricted; or
• (b)  As may be conducive to the inquiry fulfilling its terms of reference;
• (c)  or necessary in the public interest, having regard to certain statutorily specified matters.
• These “specified matters” are set out in clauses 21(4) and (5) and include avoiding “harm or damage”, which includes death or injury and damage caused by disclosure of commercially sensitive information and damage to Gibraltar’s national security, international relations or economic interests.
• Again, this is NOT the personal interest of any individual, saving someone’s embarrassment, of any minister, of the political government or of any part of it.
  It is, in fact, a narrowly drafted power which is very conditional in setting out how and when it can be operated. 

Given the controversy that has raged, I think it would be useful to read this clause to the House: 

Restrictions on public access etc. 

21.(1) Restrictions may, in accordance with this section, be imposed on—
(a) attendance at an inquiry, or at any particular part of an inquiry;
(b) disclosure or publication of any evidence or documents given, produced or provided to an inquiry.
(2) Restrictions may be imposed in either or both of the following ways—
(a) by being specified in a notice (a “restriction notice”) given by the Government to the chairman at any time before the end of the inquiry;
(b) by being specified in an order (a “restriction order”) made by the chairman during the course of the inquiry.
(3) A restriction notice or restriction order must specify only such restrictions—
(a) as are required by any statutory provision or rule of law; or
(b) as the Government or chairman considers to be conducive to the inquiry fulfilling its terms of reference or to be necessary in the public interest, having regard in particular to the matters mentioned in subsection (4).
(4) Those matters are—
(a) the extent to which any restriction on attendance, disclosure or publication might inhibit the allaying of public concern;
(b) any risk of harm or damage that could be avoided or reduced by any such restriction;
(c) any conditions as to confidentiality subject to which a person acquired information that he is to give, or has given, to the inquiry;
(d) the extent to which not imposing any particular restriction would be likely— 

(i) to cause delay or to impair the efficiency or effectiveness of the inquiry; or
(ii) otherwise to result in additional cost (whether to public funds or to witnesses or others). 

(5) In subsection (4)(b) “harm or damage” includes in particular— 

(a) death or injury;
(b) damage to national security or international relations;
(c) damage to the economic interests of Gibraltar;
(d) damage caused by disclosure of commercially sensitive information. 

Clearly, Madam Speaker, it is fanciful in the extreme to think that this can be a clause that can cause anyone any serious issue. 

It is so tightly drafted that the idea that it can be abused in the personal or political self interest is in my submission entirely nonsensical. 

Anyone who makes that point is making the point either for party political purposes or for the purposes of prejudicing parties against the Government in the context of the inquiry. In other words, the moat in their own eye. The Government is making a law which it cannot use for its party political interest, it cannot use in the personal interest of a minister in any way. But the points being made are being made exactly for party political interest or in the personal interest of others. 

And, of course, Madam Speaker, in any event, despite how tightly drafted that clause is, the exercise of the power to impose a restriction notice – or indeed, we’re here concentrating on the Government because that is where the attack from the Opposition has lain outside of here and no doubt will lay here – but even a restriction order made by the Chairman of an inquiry, who is not a judge of the Supreme Court of Gibraltar, the Court of Appeal or the Supreme Court of the United Kingdom, he is the Chairman of an inquiry, if he were to make such an order would be subject to judicial review as well. And then it would be the judges of our Supreme Court, the Court of Appeal or the Supreme Court, depending on where those appeals were to be taken who would be making the decision. And Madam Speaker if I could just pause for a second, people watching might hear that I’m talking about the Supreme Court of Gibraltar, then the Court of Appeal and then the Supreme Court of the United Kingdom and there is a sort of clash of nomenclature there because the United Kingdom now calls what it used to call the Judicial Committee of the House of Lords, which we refer to still as the Judicial Committee of the Privy Council, the Supreme Court. It’s for that reason that it may appear that there was an appeal from a Supreme Court to another Supreme Court. 

All of that, having taken the Parliament through the whole of the clause and the effect of it, and the potential for review of it, and the potential for appeal of the review of it, demonstrates, Madam Speaker, that this is a belt and braces piece of legislation which is not open to any of the abuse to which the Government has had to hear it would potentially be subjecting the current inquiry in the abuse alleged of its powers which we don’t yet have until this Parliament passes it. And I hope, Madam Speaker, that calmer heads will prevail once Honourable Members have heard what I have to say and have looked again at the legislation, and that we won’t have to hear in this House some of the things that we’ve had to hear outside of it. 

8. Clause 23 provides the chairman with power to require persons to give evidence and to produce and provide documents and other things. 

9. Clause 24 ensures the application of modern principles of protection of privileged documents as would apply in civil proceedings. 

10. Clauses 26 and 27 make provision for the submission of reports to the Government and for their publication by the Government or by the chairman if the Government authorises him to do so. The report must be published in full, except in respect of any matter that could be the subject of a restriction against publication under clause 21. 

11. Clause 29 creates offences. Madam Speaker, I have given notice of an amendment to clause 29 that I will be moving at the Committee Stage of the Bill, its what I referred the House to earlier in my reference to the powers of the chairman vs the powers of the Attorney General and the provisions of the constitution. 

12. Clause 30 enables the chairman (or after the Inquiry has ended, the Government) to certify any failure to comply with or acts in breach of any restriction under clause 21, or an order issued by him under clause 23 for a person to give evidence or produce documents. The court can then make such enforcement order as it could if the inquiry were proceeding before the court. 

13. Clause 31 provides the Inquiry team with immunity from suit.
14. And Clause 32 curtails to 14 days the time-limits for challenging decisions by judicial review, 

unless the court grants an extension. 

15. Clauses 33 and 34 make provisions in relation to the costs expenses of conducting an inquiry and their payment by the Government from public funds. 

16. Clause 35 provides the Government with power to make rules relating to specified matters relating to inquiries, namely matters relating to evidence and procedure and the expenses of witnesses under clause 34. 

17. Clause 37 contains the transitory, transitional and saving provisions, to which I have already referred and which I have confirmed I will be moving on amendment on in order to ensure that the inquiry into the early retirement of Ian McGrail, for that is what it is an inquiry into, should not be subject to the Government’s powers under sections 15 and 16 to suspend or end the inquiry by notice to the chairman. 

18. Additionally, Madam Speaker, there is one additional small amendment that should be made to the Bill in section 37. In subsection (3), after the word "held" in line 2, we will move and amendment to add the words "(including for the avoidance of doubt the Commissions of Inquiry Act)". This is to make entirely clear that the reference in section 37(4) to "existing inquiry" extends to inquiries under the current Act, and that the McGrail inquiry is covered by section 37(4). 

Madam Speaker, given the national and international comment there has been and there will no doubt be in relation to this Bill, I have felt it necessary to provide more detail in my exposition than I would usually have done on any other Bill. 

I hope in doing so I will have provided comfort to those listening that this is a step forward for our jurisdiction and a modernisation of our law that cannot be impeached, whatever partisan interests others are defending. 

And so, Madam Speaker, for all the reasons I have already set out in my address, I unhesitatingly and wholeheartedly commend the general principles and merits of the Bill to the House.