Submission from Felix Alvarez, Chairman,
Gibraltar Equality Rights Group (GGR)
1. SYNOPSIS
On accession, the United Kingdom attained High
Contracting obligations under the European Convention of Human
Rights (EConHR) extending to Gibraltar as a jurisdiction of applicability.
In contrast to Her Majesty's Government's swift compliance with
European Court of Human Rights jurisprudence in the area of age
of consent for same-sex relations within the United Kingdom, it
has, unfortunately, failed to date to ensure similar compliance
by the Government of Gibraltar (GoG). Furthermore, the United
Kingdom cannot absolve itself of this obligation by reference
to provisions of the Gibraltar Constitution 2006 inasmuch as its
obligations under the Convention are non-delegable and its primary
obligation under Art 1 of the Convention is to "secure"
its provisions "to everyone within their jurisdiction".
These obligations are heightened where GoG not only fails bureaucratically
but also fails practically and evidentially through act or omission
to satisfy such requirements.
In addition, the United Kingdom acquired responsibilities
for the social and human rights development of Gibraltar via its
submission of terms extending membership of Gibraltar to the European
Union through its own accession. There is little evidence that
in its periodic progress reporting to the European Union any reference
is made on either positive developments or lack of progress in
social and human rights to Gibraltar's citizenship, alongside
similar reporting regarding parallel citizens rights in the United
Kingdom in the context of EC law. This leads to a "blind
spot" regarding Gibraltar at EC level which results in little
if any attention being paid by the European institutions to Gibraltarian
citizens' concerns as a matter of procedural governance. What
little attention has been paid by Europe to such localised matters
has usually arisen independently, as a result not of transfer
of information on the state of Gibraltar issues but as a result
of independent initiatives, such as those of the NGO authoring
this submission.
2. INTRODUCTION
(a) Equality Rights Group GGR is a not-for-profit,
independent, Non-Governmental Organisation (NGO) based in Gibraltar
which campaigns and works for the advancement of a wide range
of human rights issues. It was originally set up in September
2000 and was formerly known as Gib Gay Rights (initialised as
GGR).
(b) When it was first established, GGR's
focus was purely on sexual minority rights, particularly on sexual
orientation discrimination. Whilst the UK had decriminalised consenting
homosexual relations under the Sexual Offences Act 1967, Gibraltar
did not do so until almost three decades later when, following
pressure from Her Majesty's Government regarding an unsustainable
disparity between European Convention of Human Rights (EconHR)
requirements and Gibraltar law (which up to then still penalised
such relations with imprisonment), in 1993 the Government of Gibraltar
(GoG) introduced amendments to the Gibraltar Criminal Offences
Act 1960 decriminalising same-sex relations. No further social
or legislative change had taken place, however since the early
90s; and no social or political debate existed in relation to
the issues affecting sexual minorities in Gibraltar. GGR thus
came into being in a context where social debate and a movement
for change was considered increasingly necessary by citizens who
felt these constraints. However, with the years, and as a result
of approaches from the wider Gibraltarian community, GGR became
increasingly and publicly active in a wide range of human rights
issues, such as disability rights, the rights of the elderly,
the rights of trade unionists, the rights of EU nationals in Gibraltar
and the rights of children to protection from abuse. However,
the main focus of GGR remains that of sexual minority rights and
gay and lesbian equality; and GGR remains the only NGO in Gibraltar
on this issue, being widely perceived as Gibraltar's primary NGO
on the wider human rights front. GGR's work on gay and lesbian
equality includes:
— Working with other NGOs such as the
Citizen's Advice Bureau to provide support and expertise on issues
raised.
— Providing professional training for
new recruits to the Royal Gibraltar Police in order to sensitise
them to the legal and social issues relating to policing the gay
and lesbian community in Gibraltar.
— Working with the majority of Gibraltar's
political parties to raise the profile of sexual minority rights;
GGR successfully negotiated the inclusion of manifesto commitments
for the rights of sexual minority citizens by Opposition parties
at the 2003 Gibraltar General Elections; and at this year's General
Elections in Gibraltar 3 out of 4 political parties carried Manifesto
commitments on sexual minorities which were the direct result
of Equality Rights Group GGR's negotiations and active involvement
in promoting dialogue.
— GGR is a recognised NGO at EU level,
having been the first Gibraltarian organisation to have directly
met with EU Commissioners to raise the issue of human rights in
Gibraltar. As a result of this meeting, Justice Commissioner Franco
Frattini, on behalf of the EU, requested a report from the Chairman
of GGR, Felix Alvarez, on the status of human rights in Gibraltar
(copy attached).
3. THE UNITED
KINGDOM'S
HUMAN RIGHTS
RESPONSIBILITY TO
GIBRALTAR
3.1 The European Convention of Human Rights
(EConHR)
The United Kingdom's obligations as a High Contracting
party under Article 1 EConHR to "secure to everyone within
their jurisdiction the rights and freedoms defined in Section
I" of the Convention are clear; and they conform both those
provisions set out in the Convention and its Protocols and also
the jurisprudence emerging from the European Court of Human Rights.
Our focus of concern being Gibraltar, it is a fact that the Rock
is one of the relevant jurisdictional territories of applicability,
with extensions recognising the right of individual petition before
the European Court of Human Rights (ECtHR) applied for by the
United Kingdom on a rolling fiveyear basis.
The EConHR, however, is a living document and
cannot, therefore, be viewed in a contextual vacuum. Within this
purview (but limiting ourselves to the core area of this submission)
when the European Commission on Human Rights found that the UK's
then discriminatory age of consent violated the Convention (Sutherland
v UK, 1997), and within the context of an already emerging
legislative movement through the introduction of the Human
Rights Act 1998 (with its concerns for legislative, institutional
and judicial compatibility with the Convention), Her Majesty's
Government moved quickly to respect Convention jurisprudence by
introducing the Sexual Offences (Amendment) Act 2000. In
this way, HMG complied not only with ECtHR case-law, but with
its fundamental High Contracting Party legal and moral obligations
in the matter of an equal age of consent law.
The ECtHR has reiterated its judicial insistence
that inequality in the sexual age of consent in Signatory Member
States' legislation breaches the Convention through its later
(post-Sutherland) judgments in L & V v Austria, 2003 and
S.L. v Austria, 2003.
To date, the GoG has still not complied with
this equalisation requirement. The heterosexual age of consent
under s.116 Gibraltar 1993 Amendment to the Criminal Offences
Act 1960 remains at 16 for heterosexuals and 18 for consenting
homosexual men. Below is an excerpt of a letter written by Chief
Minister Peter Caruana, QC (Reference 3850, dated 20 January 2005)
in response to this Organisation's request for clarification on
this issue:
"Criminal Offences Ordinance—Section
116
Thank you for your letter dated 23 November
2004. I apologise for the delay in replying.
The Government is not, as a matter of policy,
in favour of lowering the age of consent for homosexual sex to
16. However, as the Chief Secretary told you in his letter dated
5 February 2003, the Government is strongly committed to complying
with and implementing it's [sic] clear and established obligations
under the European Convention of Human Rights. Government Policy
preference would not suffice to avoid such compliance.
There is little doubt following this response
that the Government of Gibraltar expresses little moral compulsion
to comply with equalisation requirements that are not of a strictly
legal order. It is this Organisation's contention that it is precisely
an obligation of a serious legal order that is indeed at issue
in this matter. The contention by Chief Minister Caruana that
GoG is "strongly committed" to compliance with EConHR
contrasts with the stark reality—almost three years later
there has been none in the matter at hand! It is important to
note that the equalisation requirement under Convention jurisprudence
carries no obligation as to the precise age of consent to be fixed,
merely that it be equally applied irrespective of sexual orientation.
The Chief Minister's disagreement with an age of consent at 16
is therefore irrelevant to compliance and avoids the issue: it
is the mechanism for achieving equality which is the point.
Following the enactment of the Gibraltar Constitution
2006, fundamental provisions similar but not identical to those
in EConHR are established under Gibraltar law; whilst it may be
held that such parallelism places a greater burden on GoG to comply
with obligations under the Convention, it does not absolve HMG
of its primary non-delegable obligation to secure compliance
under Art 1 EConHR. To all intents and purposes, therefore,
the Convention rights paralleled in the Gibraltar Constitution
2006 represent—in terms of HMG's Convention obligations—no
more than a voluntary code of conduct requiring HMG's supervision
and intervention in instances where self-regulation fails to meet
the requirement for HMG to "secure" Convention rights
in that jurisdiction under international law. Gibraltar constitutionally-based
argumentation, therefore, cannot absolve HMG of its signatory
obligations under the Convention and, by extension, must lead
to rejection of any such rationale: securing rights provided under
the European Convention cannot be construed to signify delegation
of obligations contracted by HMG to the Government of Gibraltar,
especially in the light of the latter's apparent distaste for
favourable same-sex Convention jurisprudence.
It is, therefore, up to this Committee to respond
regarding the clarity of the duties incumbent upon HMG to ensure
the United Kingdom's own non-delegable Convention obligations
are not prevented from seeing fruition by what the Chief Minister
of Gibraltar has clearly delineated as a mere "preference"
on the latter's part; and within the framework of its investigation
into issues of good governance in the Overseas Territories in
the particular concerns which (i) form the specific reporting
areas within the Committee's current investigations and (ii) for
which the Committee is parliamentarily entrusted generally.
3.2 The European Community framework
Good governance, in the UK-Gibraltar context
is further extended in meaning by the terms of the United Kingdom's
accession to the European Communities. All primary and secondary
EC law not subject to specific exception under Article 28 of
the Treaty of Accession of 22 January 1972 therefore applies
to Gibraltar as an EC territory.
Standards of good governance in the territory
of Gibraltar therefore require the application of fundamental
protection against sexual orientation discrimination in the Treaty
of Rome recognised under Articles 3(2) and 13 EC. It
may be enlightening for the Committee to consider statements made
in an Introductory Memorandum of the EC's Committee on Legal
Affairs and Human Rights and entitled Implementation of judgments
of the European Court of Human Rights[4]
in which the role of National parliaments regarding the EC's obligations
regarding enforcement of human rights provisions under EConHR
is contextualised thus:
"1. Ratification of the European Convention
of Human Rights (ECHR), including the compulsory jurisdiction
of the European Court of Human Rights and the binding nature of
its judgments, has become a requirement for membership of the
Organisation. Indeed, the binding nature of the Court's judgments,
with the Committee of Ministers' acting as the guarantor of their
proper execution by states, is the main pillar of the ECHR's system
and its effectiveness.
2. The ECHR's mechanism does not, however,
operate in a legal vacuum: the Court's judgments are implemented
and translated into real life through a complex legal and political
process, which involves a number of domestic and international
institutions. National parliaments and the Parliamentary Assembly
are also called upon to play an important role in this process
and can be instrumental in ensuring proper implementation of the
Court's judgments".
We conclude, therefore, that it is properly
held that the UK's membership of the EC itself is a source of
obligation to implementation of the European Convention in Gibraltar.
It is, however, our Organisation's respectful submission to this
Committee that the total lack of periodic EC reporting by HMG
on Gibraltar issues of the type being addressed in this submission
leads to an informational `blind spot' whose consequence is to
effectively delete by omission the supervisory role of EC institutions
in their human rights obligations to Gibraltar. In terms of good
governance, it is suggested, that in the absence of Gibraltar
tracking feedback in HMG's procedural periodic reporting to the
EC, neither the European Commission nor the European Parliament
can currently rely on up-to-date information regarding the effect
or otherwise of European Social Agenda advances or failures on
this tiny European territory. This information deficit should
be addressed in terms of its central importance to the area of
good governance given the EC dimension in the Gibraltar configuration.
Good governance is, almost by definition, not reachable without
information.
4. CONCLUSIONS
AND RECOMMENDATIONS
4.1 Standards of good governance have Gibraltar
dimensions both within the context of the European Convention
on Human Rights and under EC law. The Committee's deliberations
under this Inquiry will no doubt take these political and legal
coordinates into account within its mission of assessing the achievement
or otherwise of objectives against Strategic Priority No 10 (the
security and good governance of the Overseas Territories).
4.2 With respect to the Convention: good
governance obliges the Foreign & Commonwealth Office to either
(a) require the Government of Gibraltar comply with ECtHR jurisprudence
in similar fashion as it saw fit in 1993 (when Gibraltar was obliged
to decriminalise homosexual relations between consenting males);
or, in the alternative, (b) exercise the powers vested in the
Governor of Gibraltar under s 20 of Annex 1 to the Gibraltar
Constitution Order 2006 (the Gibraltar Constitution) to ensure
compliance.
4.3 With respect to EC law: good governance
requires that UK periodic reporting should explicitly include
parallel reporting on Gibraltar EC matters so as to correct the
current EC "blind spot" regarding Gibraltar issues consequent
upon no such information being passed to the EC institutions.
If a periodic reporting duty exists in respect of UK matters across
all fields of concern, a similar duty, as a matter of construction
and by extension, exists with respect to Gibraltar's approximately
28,000 citizens.
24 September 2007
4 Memorandum declassified by the EC Committee on
Legal Affairs and Human Rights at its meeting on Tuesday 21
June 2005; reference AS/Jur (2005 35) 20 June 2005. Back
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