Gibraltar Publishes Bill For Independent Judiciary

by Robert Lee, for LawAndTax-News.com, London

09 May 2007

The government of Gibraltar has published a Bill for a Judicial Service Act, which makes provision for judicial service in accordance with the new constitution and enshrines the principles of the independence of the judiciary.

In addition to providing resources for the courts, the Act would: make provision for the establishment of a Code of Judicial conduct and ethics; outline disciplinary matters relating to the judiciary; explain the conduct of the business of the Judicial Service Commission; and set the grounds upon which junior members of the judiciary may be removed from office.

The principal provisions of the Bill are as follows:

UK legislative provisions in the Constitutional Reform Act 2005 relating to the rule of law, the guarantee of continued judicial independence and the right of the judiciary to make representation directly to Parliament are incorporated into in this Bill and thus enshrined in Gibraltar law; The President of the Court of Appeal and the Chief Justice are empowered to lay before Parliament written representations on matters that appear to them, or either of them, to be matters of importance relating to the Judiciary, or otherwise to the administration of justice in Gibraltar. They may make similar representations to the Minister for Justice and the Government.

The President of the Court of Appeal, who is the most senior judge of Gibraltar’s judiciary, is designated President of the Courts of Gibraltar. As President of the Courts of Gibraltar, he has overall responsibility for representing the views of the judiciary to Parliament, to the Minister for Justice and to the Government; for arrangements for welfare, training and guidance of the judiciary; and for maintenance of appropriate arrangements for the allocation of work within the courts.

Subject to the President’s overall responsibility for the above issues, the Chief Justice will have direct, day-to-day responsibility for these issues for the Supreme Court and all lower courts.

The Minister for Justice acquires a statutory responsibility in the same terms as apply in UK legislation, to ensure that the Courts have appropriate resources to carry on their business.

Detailed provisions are made in relation to the functions and procedures of the Judicial Service Commission. These relate to appointment and removal of members of the Commission, appointment of secretary, expenses, functioning of the commission, privilege of its communications, its powers to conduct examinations and appoint boards and related matters.

Detailed provisions are made in relation to judicial appointments, which under the Constitution are made by the Governor acting on the advice of the Judicial Service Commission. In particular, the Act requires the Commission to advise the Governor to select candidates on merit, and provides for the mechanics of how the Commission goes about making and communicating its advice.

The Act provides for the drawing up and adoption of a Code of judicial conduct and ethics. This will ensure the correct degree of transparency and accountability by judges for their conduct.

The grounds of removal of senior judicial post holders and the procedure for that is established in the Constitution. However, the Act adopts the same grounds for holders of junior judicial posts; The Act establishes a process and powers relating to the exercise of disciplinary powers over members of the judiciary. These powers are vested in the Governor, acting on the advice of the Judicial Service Commission, in the case of the Junior Judiciary. In the case of the Senior Judiciary, the powers (subject to the Constitutional termination procedure) are vested in the President of the Courts of Gibraltar acting after consultation with the Judicial Services Commission.

Commenting on the Bill, Justice Minister Peter Caruana said:

“The Bill modernises our Judiciary, takes it out on the colonial area, and makes it more transparent and accountable, while at the same time enhancing and enshrining its independence. The Bill also implements assurances given to the Bar Council in the lead-up to the Constitution referendum. I am very pleased that the Bill has been very broadly welcomed by the overwhelming majority of the Judiciary at every level, and the legal profession."

"The consultation process has served to improve the Bill in several respects. This is the purpose of a consultation process before a Bill is published. The Government is grateful to the Governor, the President and Justices of the Court of Appeal, the Additional Judge, the Stipendiary Magistrate, the Magistrates Association, the Bar Council and the Attorney General for expressing their views in the normal constructive way that is customary in a pre-legislative consultation process, and for respecting the spirit and purpose of the consultation process."

"Under the Constitution, two members of the Judicial Service Commission are appointed by the Governor on my advice as Chief Minister. Mr James Neish QC is a leading member of the legal profession in Gibraltar. He is a lawyer and a person of the highest degree of professionalism and integrity. I have advised the Governor to appoint Mr Neish and the Chief Secretary, Richard Garcia to be members of the Judicial Service Commission.”

Gibraltarians last year accepted a new constitution for the jurisdiction, which the government says will give it more autonomy from the United Kingdom over its own internal affairs. In a referendum, 60.24% of those who turned out voted 'yes' to the new constitution, while 37.75% voted to reject it.

The constitution, agreed in April 2006 by then UK Foreign Secretary Jack Straw and Gibraltar's Chief Minister Peter Caruana, and between Gibraltar's two main political parties later in the year, sees the UK retaining international responsibility for Gibraltar. However, the new constitution cedes certain powers previously in the possession of the British government to Gibraltar, judicial autonomy being one of the most important.

Recommended