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IN FULL: Despatch, Order in Council and new Constitution
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DRAFT DESPATCH - FINAL
*The Despatch is the 'letter' under cover of which the Foreign Secretary would eventually send the new constitution to the Governor if approved in referendum by the Gibraltarian people, and after the Privy Council has promulgated the Order in Council into law
"The Gibraltar Constitution Order 2006 has today been made by Her Majesty in Council. As was the case in the 1969 Her Majesty's Government in the United Kingdom in this despatch confirms the position in relation to certain matters in the Constitution. I would therefore be obliged if you could arrange for this Despatch to be published in the Gibraltar Gazette at the same time as the Gibraltar Constitution Order itself
As the Preamble to the new Gibraltar Constitution Order makes clear, Her Majesty's Government stands by its long-standing commitment that Gibraltar will remain part of Her Majesty's dominions unless and until an Act of Parliament otherwise provides, and furthermore that Her Majesty's Government will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes
As Mr Jack Straw set out in his statement of 6 February 2004, the starting point for the work to modernise Gibraltar's Constitution was the invitation in the 1999 White Paper (Partnership for Progress and Prosperity: Britain and the Overseas Territories) to OT governments to submit proposals for constitutional reform. In July 1999, the Gibraltar House of Assembly constituted a Select Committee to report on constitutional reform. The Committee published its proposals in January 2002. We formally received them in December 2003. These proposals were subsequently discussed between delegations from the UK and Gibraltar in November/December 2004, September 2005 and March 2006
The new Constitution provides for a modern relationship between Gibraltar and the UK. This Constitution does not in any way diminish British sovereignty of Gibraltar, and the UK will retain its full international responsibility for Gibraltar, including for Gibraltar's external relations and defence, and as the Member State responsible for Gibraltar in the European Union. Gibraltar will remain listed as a British Overseas Territory in the British Nationality Act 1981, as amended by the British Overseas Territories Act 2002
As a separate territory, recognised by the United Nations and included since 1946 in its list of non-self-governing territories, Gibraltar enjoys the individual and collective rights accorded by the UN Charter. Her Majesty's Government therefore supports the right of self-determination of the people of Gibraltar, promoted in accordance with the other principles and rights of the UN Charter, except in so far only as in the view of Her Majesty's Government, which it has expressed in Parliament and otherwise publicly on many occasions, Article X of the Treaty of Utrecht gives Spain the right of refusal should Britain ever renounce sovereignty
Thus, it is the position of Her Majesty's Government that there is no constraint to that right, except that independence would only be an option for Gibraltar with Spain's consent
Her Majesty's Government takes note that Gibraltar does not share the view that this constraint exists and that their acceptance of this Constitution is on that basis."
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[Draft of 5 June 2006]
THE GIBRALTAR CONSTITUTION ORDER 200[6]
At the Court at Buckingham Palace
THE [ ] DAY OF [ ] 200[6]
PRESENT, THE QUEEN'S MOST EXCELLENT MAJESTY IN COUNCIL
Whereas Gibraltar is part of Her Majesty's dominions and Her Majesty's Government have given assurances to the people of Gibraltar that Gibraltar will remain part of Her Majesty's dominions unless and until an Act of Parliament otherwise provides, and furthermore that Her Majesty's Government will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes: And whereas the people of Gibraltar have in a referendum held on [date] freely approved and accepted the Constitution annexed to this Order which gives the people of Gibraltar that degree of self-government which is compatible with British Sovereignty of Gibraltar and with the fact that the UK remains fully responsible for Gibraltar's external relations
Now, therefore, Her Majesty, by virtue and in exercise of all the powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:- Citation, commencement and interpretation 1.-(1) This Order may be cited as the Gibraltar Constitution Order 200[6]
(2) This Order shall be published in the Gazette and shall come into force on the day it is so published
(3) In this Order
- "the appointed day" means such day as may be prescribed by the Governor by proclamation in the Gazette; "the Constitution" means the Constitution set out in Annex 1 to this Order; "the existing Order" means the Gibraltar Constitution Order 1969
(4) Section 78 of the Constitution shall apply for the purposes of interpreting this section, section 2 and Annex 2 to this Order and otherwise in relation thereto as it applies for the purpose of interpreting and in relation to the Constitution
Commencement of Constitution and revocation of existing Order 2. With effect from the appointed day
- (a) the Constitution set out in Annex 1 to this Order shall (subject to the transitional and other provisions set out in Annex 2 to this Order) have effect in Gibraltar, a part of Her Majesty's dominions, known as the City of Gibraltar; (b) the existing Order shall be revoked
A.K.Galloway ----------- ANNEX 1 TO THE ORDER Section 2 THE CONSTITUTION OF GIBRALTAR ARRANGEMENT OF SECTIONS CHAPTER I PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS Section 1. Fundamental rights and freedoms of the individual
2. Protection of right to life
3. Protection of right to personal liberty
4. Protection from slavery and forced or compulsory labour
5. Protection from inhuman treatment
6. Protection from deprivation of property
7. Protection for privacy of home and other property
8. Provisions to secure protection of law
9. Protection of freedom of conscience
10. Protection of freedom of expression
11. Protection of freedom of assembly and association
12. Protection of freedom to establish schools
13. Protection of freedom of movement
14. Protection from discrimination on the grounds of race, etc
15. Right to marry and found a family
16. Enforcement of protective provisions
17. Provisions for periods of public emergency
18. Interpretation and savings
CHAPTER II THE GOVERNOR 19. Office of Governor
20. Powers and duties of Governor
21. Governor's taking of oath
22. Vacancy in the office of Governor
23. Deputy to Governor
CHAPTER III THE LEGISLATURE Part I - The Gibraltar Parliament 24. Legislature of Gibraltar
25. Gibraltar Parliament
26. Speaker
27. Qualifications for Elected Members
28. Disqualifications for Elected Members
29. Tenure of office of Elected Members
30. Vacation of seat on sentence, etc
31. Determination of questions as to membership
Part II - Legislation and Procedure in the Gibraltar Parliament 32. Power to make laws
33. Mode of exercise of legislative power
34. Governor's special legislative powers
35. Bills and motions
36. Privileges of the Gibraltar Parliament and Members
37. Meetings and general elections
38. Dissolution
39. Rules of procedure
40. Oath of allegiance
41. Presiding in the Parliament
42. Quorum
43. Voting
CHAPTER IV THE EXECUTIVE 44. Executive authority of Gibraltar
45. Council of Ministers and Government of Gibraltar
46. Assignment of business to Ministers
47. Governor's special responsibilities
48. Gibraltar Police Authority
49. Governor to keep Chief Minister informed
50. Consultation with Council of Ministers
51. Proceedings in Council of Ministers
52. Governor to be kept informed
53. Oaths of members of Council of Ministers
CHAPTER V THE PUBLIC SERVICE, INCLUDING JUDICIAL AND SPECIFIED APPOINTMENTS 54. Public service
55. Public Service Commission
56. Specified Appointments Commission
57. Judicial Service Commission
58. Procedure of Commissions
59. Attorney-General
CHAPTER VI THE JUDICATURE 60. Supreme Court
61. Court of Appeal
62. Appointment of judges
63. Acting judges
64. Tenure of office of judges
65. Oaths to be taken by judges
66. Appeals to Court of Appeal and to Her Majesty in Council
CHAPTER VII FINANCE 67. Consolidated Fund
68. Withdrawals from Consolidated Fund or other public funds
69. Authorisation of expenditure
70. Authorisation of expenditure in advance of appropriation
71. Contingencies Fund
72. Remuneration of certain officers
73. Public debt
74. Audit
CHAPTER VIII LAND 75. Crown Lands
CHAPTER IX MISCELLANEOUS 76. Powers of pardon, etc
77. Mayor of Gibraltar
78. Interpretation
79. References to public office, etc
80. Acting appointments
81. Re-appointments and concurrent appointments
82. Resignations
83. Saving for jurisdiction of courts
84. Removal from office
SCHEDULE TO THE CONSTITUTION OATHS CHAPTER I PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS Whereas all peoples have the right of self-determination and by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development and may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit and international law; And whereas the realisation of that right must be promoted and respected in conformity with the provisions of the Charter of the United Nations and any other applicable international treaties; Fundamental rights and freedoms of the individual 1. It is hereby recognised and declared that in Gibraltar there have existed and shall continue to exist without discrimination by reason of any ground referred to in section 14(3), but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms, namely
- (a) the right of the individual to life, liberty, security of the person, the enjoyment of property and the protection of the law; (b) freedom of conscience, of expression, of assembly, of association and freedom to establish schools; and (c) the right of the individual to protection for his personal privacy, for the privacy of his home and other property and from deprivation of property without adequate compensation, and the provisions of this Chapter shall have effect for the purpose of affording protection to the said rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest
Protection of right to life 2.-(1) No person shall be deprived of his life intentionally
(2) A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is no more than absolutely necessary
- (a) for the defence of any person from violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or (c) for the purpose of suppressing a riot, insurrection or mutiny, or if he dies as the result of a lawful act of war
Protection of right to personal liberty 3.-(1) No person shall be deprived of his personal liberty save as may be authorised by law in any of the following cases, that is to say
- (a) in consequence of his unfitness to plead to a criminal charge or in execution of the sentence or order of a court, whether in Gibraltar or elsewhere, in respect of a criminal offence of which he has been convicted; (b) in execution of the order of a court punishing him for contempt of that court or of another court or of a tribunal; (c) in execution of the order of a court made to secure the fulfilment of any obligation imposed on him by law; (d) for the purpose of bringing him before a court in execution of the order of a court; (e) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence under any law; (f) in the case of a person who is a minor as prescribed by law, for the purpose of his education or welfare; (g) for the purpose of preventing the spread of an infectious or contagious disease; (h) in the case of a person who is, or is reasonably suspected to be, of unsound mind or addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community; (i) for the purpose of preventing the unlawful entry of that person into Gibraltar, or for the purpose of effecting the expulsion, extradition or other lawful removal of that person from Gibraltar or for the purpose of restricting that person while he is being conveyed through Gibraltar in the course of his extradition or removal as a convicted prisoner from one country to another or the taking of proceedings relating thereto
(2) Any person who is arrested or detained shall be informed as soon as reasonably practicable, in a language that he understands, of the reasons for his arrest or detention. Any person who is arrested or detained shall have the right, at any stage and at his own expense, to retain and instruct without delay a legal practitioner of his own choice, and to hold private communication with him, and in the case of a minor as prescribed by law he shall also be afforded a reasonable opportunity for communication with his parent or guardian, provided that when the person arrested or detained is unable to retain a legal practitioner of his own choice or be represented by a legal practitioner at the public expense as may be prescribed by any law, he may be represented, and hold private communication with, such person as the court may approve
(3) Any person who is arrested or detained
- (a) for the purpose of bringing him before a court in execution of the order of a court; or (b) upon reasonable suspicion of his having committed, or being about to commit, a criminal offence, and who is not released, shall be brought without undue delay before a court; and if any person arrested or detained as mentioned in paragraph (b) is not tried within a reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released either unconditionally or upon reasonable conditions, including in particular such conditions as are reasonably necessary to ensure that he appears at a later date for trial or for proceedings preliminary to trial, and without prejudice to the generality of the foregoing such conditions may include bail
(4) Any person who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful
(5) Any person who is unlawfully arrested or detained by any other person shall be entitled to compensation therefor from that other person
Protection from slavery and forced or compulsory labour 4.-(1) No person shall be held in slavery or servitude
(2) No person shall be required to perform forced or compulsory labour
(3) For the purposes of this section, the expression "forced or compulsory labour" does not include
- (a) any work required to be done in the ordinary course of detention imposed in accordance with section 3 or during conditional release from such detention or as an alternative to such detention; 9 (b) any work or service required of a member of a disciplined force in pursuance of his duties as such or, in the case of a person who has conscientious objections to service as a member of a naval, military or air force, any work or service that that person is required by law to perform in place of such service; or (c) any work or service required during a period of public emergency or in the event of any other emergency or calamity that threatens the life or well-being of the community, to the extent that the requiring of such work or service is reasonably justifiable, in the circumstances of any situation arising or existing during that period or as a result of that other emergency or calamity, for the purpose of dealing with that situation
Protection from inhuman treatment 5. No person shall be subjected to torture or to inhuman or degrading punishment or other such treatment
Protection from deprivation of property 6.-(1) No property of any description shall be compulsorily taken possession of, and no interest in or right over property of any description shall be compulsorily acquired, except where the following conditions are satisfied, that is to say
- (a) the taking of possession or acquisition is necessary or expedient in the public interest in accordance with Article 1 of the First Protocol to the European Convention on Human Rights; (b) there is reasonable justification for the causing of any hardship that may result to any person having an interest in or right over the property; and (c) provision is made by a law applicable to that taking of possession or acquisition
- (i) for the prompt payment of adequate compensation; and (ii) securing to any person having an interest in or right over the property a right of access to the Supreme Court, whether direct or on appeal from any other authority, for the determination of his interest or right, the legality of the taking of possession or acquisition of the property, interest or right, and the amount of any compensation to which he is entitled, and for the purpose of obtaining prompt payment of that compensation
(2) No person who is entitled to compensation under this section shall be prevented from remitting, within a reasonable time after he has received any amount of that compensation, the whole of that amount (free from any deduction, charge or tax imposed in respect of its remission) to any country of his choice outside Gibraltar
(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (2) to the extent that the law in question authorises
- (a) the attachment, by order of a court, of any amount of compensation to which a person is entitled in satisfaction of the judgment of a court or pending the determination of civil proceedings to which he is a party; (b) the imposition of reasonable restrictions on the manner in which any amount of compensation is to be remitted; (c) the imposition of
- (i) any deduction, charge or tax; or (ii) any obligation or restriction relating to exchange control, that is imposed generally in respect of the remission of moneys from Gibraltar and that is not discriminatory within the meaning of section 14(3)
(4) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1)
- (a) to the extent that the law in question makes provision for the taking of possession or acquisition of property
- (i) in satisfaction of any tax, rate or due; (ii) by way of penalty for breach of the law or forfeiture or seizure in consequence of a breach of the law; (iii) as an incident of a lease, tenancy, mortgage, charge, sale, pledge or contract; (iv) in the execution of the judgment or order of a court; (v) by reason of its being in a dangerous state or injurious to the health of human beings, animals, trees or plants; (vi) in consequence of any law with respect to the limitation of actions or acquisitive prescription; (vii) for so long only as may be necessary for the purposes of any examination, investigation, trial or enquiry or, in the case of land, the carrying out thereon
- (A) of work of soil conservation or the conservation of other natural resources; or 11 (B) of agricultural development or improvement that the owner or occupier of the land has been required, and has, without reasonable and lawful excuse, refused or failed to carry out; (viii) by way of the taking of any sample for the purposes of any law; or (ix) where the property consists of an animal upon its being found trespassing or straying; (b) to the extent that the law in question makes provision for the taking of possession or acquisition of
- (i) enemy property; (ii) property of a person who has died or is unable, by reason of legal incapacity, to administer it himself, for the purpose of its administration for the benefit of the persons entitled to the beneficial interest therein; (iii) the property of a person adjudged bankrupt or a body corporate in liquidation, for the purpose of its administration for the benefit of the creditors of the bankrupt or body corporate and, subject thereto, for the benefit of other persons entitled to the beneficial interest in the property; or (iv) property subject to a trust, for the purpose of vesting the property in persons appointed as trustees under the instrument creating the trust or by a court or, by order of a court, for the purpose of giving effect to the trust
(5) Nothing in this section shall affect the making or operation of any law so far as it provides for vesting in the Crown the ownership of underground water or unextracted minerals
(6) Nothing in this section shall affect the making or operation of any law for the compulsory taking of possession or the compulsory acquisition in the public interest of any property, or the compulsory acquisition in the public interest of any interest in or right over property, where that property, interest or right is held by a body corporate established by law for public purposes in which no moneys have been invested other than moneys provided from public funds
Protection for privacy of home and other property 7.-(1) Every person has the right to respect for his private and family life, his home and his correspondence
(2) Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises
12 (3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision - (a) in the interests of defence, the economic well-being of Gibraltar, public safety, public order, public morality, public health, town planning, the development or utilisation of mineral resources, or the development or utilisation of any other property in such a manner as to promote the public benefit; (b) for the purpose of protecting the rights or freedoms of other persons; (c) to enable an officer or agent of the Government, a local government authority, or a body corporate established by law for public purposes, to enter on the premises of any person in order to value those premises for the purpose of any tax, rate or due, or in order to carry out work connected with any property that is lawfully on those premises and that belongs to the Government, that local government authority or that body corporate, as the case may be; (d) to authorise, for the purpose of enforcing the judgment or order of a court in any civil proceedings, the search of any person or property by order of a court or the entry upon any premises by such order; or (e) for the prevention of disorder or crime, except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society
Provisions to secure protection of law 8.-(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law; and, except with his own consent or as may be prescribed by law, the trial shall not take place in his absence
(2) Every person who is charged with a criminal offence
- (a) shall be presumed to be innocent until he is proved or has pleaded guilty; (b) shall be informed as soon as reasonably practicable, in a language that he understands and in detail, of the nature of the offence; (c) shall be given adequate time and facilities for the preparation of his defence; (d) shall be permitted to defend himself in person or, at his own expense, by a legal representative of his own choice or, when the interests of justice so require, by a legal representative provided at the public expense; 13 (e) shall be afforded facilities to examine, in person or by his legal representative, the witnesses called by the prosecution before any court, and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before that court on the same conditions as those applying to witnesses called by the prosecution; (f) shall be permitted to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence
(3) When a person is tried for any criminal offence, the accused person or any person authorised by him in that behalf shall, if he so requires and subject to payment of such reasonable fee as may be specified by or under any law, be given within a reasonable time after judgment a copy for the use of the accused person of any record of the proceedings made by or on behalf of the court
(4) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for a criminal offence that is severer in degree or description than the maximum penalty that might have been imposed for that offence at the time when it was committed
(5) No person who shows that he has been tried by a competent court for a criminal offence and either convicted or acquitted shall again be tried for that offence or for any other criminal offence of which he could have been convicted at the trial of that offence, save upon the order of a superior court in the course of appeal or review proceedings relating to the conviction or acquittal
(6) No person shall be tried for a criminal offence if he shows that he has been granted a pardon, by a competent authority, for that offence
(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial
(8) Any court or other authority required or empowered by law to determine the existence or extent of any civil right or obligation shall be established by law and shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or authority, the case shall be given a fair hearing within a reasonable time
(9) Except with the agreement of all the parties thereto, all proceedings of every court and proceedings for the determination of the existence or extent of any civil right or obligation before any other authority, including the announcement of the decision of the court or other authority, shall be held in public
(10) Nothing in subsection (9) shall prevent the court or other authority from excluding from the proceedings (except the announcement of the decision of the court or other authority) persons other than the parties thereto and their legal representatives to such extent as the court or other authority
- 14 (a) may by law be empowered to do so and may consider necessary or expedient either in circumstances where publicity would prejudice the interest of justice, or in interlocutory proceedings, or in the interests of public morality, the welfare of minors as prescribed by law or the protection of the private lives of persons concerned in the proceedings; or (b) may by law be empowered or required to do so in the interests of defence, public safety or public order
(11) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of
- (a) subsection (2)(a), to the extent that the law in question imposes upon any person charged with a criminal offence the burden of proving particular facts; (b) subsection (2)(e), to the extent that the law in question imposes conditions that must be satisfied if witnesses called to testify on behalf of an accused person are to be paid their expenses out of public funds; (c) subsection (5), to the extent that the law in question authorises a court to try a member of a disciplined force for a criminal offence notwithstanding any trial and conviction or acquittal of that member under the disciplinary law of that force, so, however, that any court so trying such a member and convicting him shall in sentencing him to any punishment take into account any punishment awarded him under that disciplinary law
(12) In this section
- "criminal offence" means a crime, misdemeanour or contravention punishable under the law of Gibraltar; "legal representative" means a person lawfully in or entitled to be in Gibraltar and entitled to practise in Gibraltar as a barrister or, except in relation to proceedings before a court in which a solicitor has no right of audience, as a solicitor
Protection of freedom of conscience 9.-(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this section the said freedom includes freedom of thought and of religion, freedom to change his religion or belief, and freedom, either alone or in community with others and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance
(2) Except with his own consent (or, if he is a minor as prescribed by law, with the consent of his guardian), no person attending any place of education shall be required 15 to receive religious instruction or to take part in or attend any religious ceremony or observance if that instruction, ceremony or observance relates to a religion that he does not profess
(3) No religious community or denomination shall be prevented from or hindered in making provision for the giving, by persons lawfully in Gibraltar, of religious instruction to persons of that community or denomination in the course of any education provided by that community or denomination
(4) No person shall be compelled to take any oath that is contrary to his religion or belief or to take any oath in a manner that is contrary to his religion or belief
(5) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) or (3) to the extent that the law in question makes provision
- (a) in the interests of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedoms of other persons, including the right to observe and practise any religion or belief without the unsolicited intervention of persons professing any other religion or belief, except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society
(6) References in this section to a religion shall be construed as including references to a religious denomination and cognate expressions shall be construed accordingly
Protection of freedom of expression 10.-(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision
- (a) in the interests of defence, public safety, public order, public morality or public health; (b) for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings and proceedings before statutory tribunals, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating telephony, 16 other methods of telecommunication or electronic communication transmission systems, telegraphy, posts, wireless broadcasting, television, public exhibitions or public entertainments; or (c) for the imposition of restrictions on public officers, except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society
Protection of freedom of assembly and association 11.-(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to trade unions or other associations for the protection of his interests
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision
- (a) in the interests of defence, public safety, public order, public morality or public health; (b) for the purpose of protecting the rights and freedoms of other persons; (c) for the imposition of restrictions upon public officers; or (d) for the registration of trade unions in a register established by or under a law and for imposing reasonable conditions relating to the procedure for entry on such a register (including conditions as to the minimum number and qualifications of persons necessary to constitute a trade union qualified for registration), except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society
Protection of freedom to establish schools 12.-(1) No religious denomination and no religious, social, ethnic or cultural association or group shall be prevented from establishing and maintaining schools at its own expense
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that the law in question makes provision
- (a) in the interests of defence, public safety, public order, public morality or public health; or 17 (b) for regulating such schools in the interests of the persons receiving instruction therein, except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society
(3) No person shall be prevented from sending his child (including a person of whom he is the guardian) to any such school by reason only that the school is not established or maintained by the Government
Protection of freedom of movement 13.-(1) No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Gibraltar, the right to reside in any part of Gibraltar, the right to enter Gibraltar, the right to leave Gibraltar and immunity from expulsion from Gibraltar
(2) Any restriction on a person's freedom of movement that is involved in his lawful detention shall not be held to be inconsistent with or in contravention of this section
(3) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision - (a) for the imposition of restrictions, by order of a court, on the movement or residence within Gibraltar of any person either in consequence of his having been found guilty of a criminal offence under the law of Gibraltar or for the purpose of ensuring that he appears before a court at a later date for trial in respect of such a criminal offence or for proceedings preliminary to trial or for proceedings relating to his extradition or other lawful removal from Gibraltar; (b) for the imposition of restrictions on the movement or residence within Gibraltar of any person who does not belong to Gibraltar, provided it is reasonably justifiable in a democratic society, or the exclusion or expulsion from Gibraltar of any such person; (c) for the imposition of restrictions on the acquisition or use by any person of land or other property in Gibraltar; (d) for the imposition of restrictions on the movement or residence in Gibraltar or on the right to leave Gibraltar of persons generally or any class of persons that are reasonably required
- (i) in the interests of defence, public safety, public order, public morality or public health; or 18 (ii) for the purpose of protecting the rights and freedoms of other persons, except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society; (e) for the removal of a person from Gibraltar to be tried outside Gibraltar for a criminal offence or to undergo imprisonment outside Gibraltar in execution of the sentence of a court in respect of a criminal offence of which he has been convicted; or (f) for the imposition of restrictions on the right of any person to leave Gibraltar in order to secure the fulfilment of any obligations imposed upon that person by law, except so far as the provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society
Protection from discrimination on the grounds of race, etc 14.-(1) Subject to subsections (4), (5) and (7), no law shall make any provision that is discriminatory either of itself or in its effect
(2) Subject to subsections (6), (7) and (8), no person shall be treated in a discriminatory manner by any person acting in the performance of any public function conferred by any law or otherwise in the performance of the functions of any public office or any public authority
(3) In this section, the expression "discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, caste, place of or social origin, political or other opinions or affiliations, colour, language, sex, creed, property, birth or other status, or such other grounds as the European Court of Human Rights may, from time to time, determine to be discriminatory, whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages that are not accorded to persons of another such description
(4) Subsection (1) shall not apply to any law so far as that law makes provision
- (a) for the appropriation of revenues or other funds of Gibraltar; (b) with respect to persons who do not belong to Gibraltar; (c) for the application, in the case of persons of any such description as is referred to in subsection (3) (or of persons connected with such persons), of the law with respect to adoption, marriage, divorce, burial, devolution of property on death or other like matters that is the personal law applicable to persons of that description; 19 (d) for conferring the status of a Gibraltarian for the purposes of the Gibraltarian Status Ordinance upon any person or for withdrawing that status from any person; or (e) whereby persons of any such description as is mentioned in subsection (3) may be subjected to any disability or restriction or may be accorded any privilege or advantage that, having regard to its nature and to special circumstances pertaining to those persons or to persons of any other such description, is consistent with the provisions of the European Convention on Human Rights
(5) Nothing contained in any law shall be held to be inconsistent with or in contravention of subsection (1) to the extent that
- (a) it requires a person to belong to Gibraltar or to possess any other qualification (not being a qualification specifically relating to any of the descriptions or grounds referred to in subsection (3)) in order to be eligible for appointment to any office in the public service or in a disciplined force or in the service of a local government authority or in a body corporate established by law for public purposes; or (b) it makes reasonable provision for ensuring that persons holding office as aforesaid and giving instruction in schools maintained by the Government and attended wholly or mainly by pupils of a particular religious community or denomination are acceptable on moral and religious grounds to that religious community or denomination, or to the authorities of that community or denomination
(6) Subsection (2) shall not apply to anything which is expressly or by necessary implication authorised to be done by any such provision of law as is referred to in subsection (4) or (5)
(7) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision whereby persons of any such description as is mentioned in subsection (3) may be subjected to any restriction on the rights and freedoms guaranteed by sections 7, 9, 10, 11, 12 and 13, being such a restriction as is authorised by section 7(2), 9(5), 10(2), 11(2), 12(2) or 13(3), as the case may be
(8) Subsection (2) shall not affect any discretion relating to the institution, conduct or discontinuance of civil or criminal proceedings in any court that is vested in any person by or under this Constitution or any other law
Right to marry and found a family 15. Men and women of marriageable age have the right to marry and to found a family as prescribed by any law governing the exercise of this right
20 Enforcement of protective provisions 16.-(1) If any person alleges that any of the foregoing provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter that is lawfully available, that person may apply to the Supreme Court for redress
(2) The Supreme Court shall have original jurisdiction to hear and determine any application made by any person in pursuance of subsection (1), and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the foregoing provisions of this Chapter to the protection of which the person concerned is entitled
(3) The Supreme Court shall have such powers in addition to those conferred by subsection (2) as may be prescribed for the purpose of enabling that court more effectively to exercise the jurisdiction conferred upon it by this section
(4) The Chief Justice may make rules with respect to the practice and procedure of the Supreme Court in relation to the jurisdiction and powers conferred upon it by or under this section (including rules with respect to the time within which applications to that court may be made)
Provisions for periods of public emergency 17.-(1) Nothing contained in or done under the authority of any regulation made under the Emergency Powers Order in Council 1939 or any law enacted by the Legislature to like effect shall be held to be inconsistent with or in contravention of section 3, section 4(2) or any provision of sections 7, 9, 10, 11 or 12, section 13(1) or (3) or section 14 to the extent that the regulation or law in question makes in relation to any period of public emergency provision, or authorises the doing during any such period of anything, to the extent strictly required by the exigencies of the situation arising or existing during that period for the purpose of dealing with that situation
(2) Where any person who is lawfully detained in pursuance only of such a regulation or law as is referred to in subsection (1) so requests at any time during the period of that detention (but if he has already made such a request during that period not earlier than six months after he last made such a request during that period), his case shall be reviewed by an independent and impartial tribunal established by law and presided over by a person, entitled to practise as a barrister in Gibraltar, appointed by the Chief Justice
(3) On any review by a tribunal in pursuance of this section of the case of a detained person, the tribunal may make recommendations concerning the necessity or expediency of continuing his detention to the authority by which it was ordered but, unless it is otherwise prescribed, that authority shall not be obliged to act in accordance with any such recommendations
21 Interpretation and savings 18.-(1) In this Chapter, unless the context otherwise requires
- "child" includes a stepchild and a child adopted in a manner recognised by law; "contravention", in relation to any requirement, includes a failure to comply with that requirement, and cognate expressions shall be construed accordingly; "court" means any court of law having jurisdiction in Gibraltar, including Her Majesty in Council, but excepting, save in sections 2 and 4 and this section, a court established by a disciplinary law; "member", in relation to a disciplined force, includes any person who, under the law regulating the discipline of that force, is subject to that discipline
(2) In this Chapter "a period of public emergency" means any period during which
- (a) Her Majesty is at war; (b) the provisions of Part II of the Emergency Powers Order in Council 1939 are in operation in Gibraltar, or any emergency has been declared under any law enacted by the Legislature to like effect
(3) For the purposes of this Chapter a person shall be deemed to belong to Gibraltar if that person is a Gibraltarian for the purposes of the Gibraltarian Status Ordinance
(4) In relation to any person who is a member of a disciplined force raised in accordance with such provisions as may be prescribed by the Legislature, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter other than sections 2, 4 and 5
(5) In relation to any person who is a member of a disciplined force raised otherwise than as aforesaid and lawfully present in Gibraltar, nothing contained in or done under the authority of the disciplinary law of that force shall be held to be inconsistent with or in contravention of any of the provisions of this Chapter
(6) Nothing contained in section 10, 11 or 13 shall be construed as precluding the inclusion in the terms and conditions of service of public officers of reasonable requirements as to their communication or association with other persons or as to their movements or residence
(7) References in this Chapter to any Ordinance are references to that Ordinance as from time to time amended and include references to any law replacing that Ordinance
22 (8) (a) A court or tribunal determining a question which has arisen in connection with a right or limitation thereof set out in this Chapter must take into account any
- (i) judgment, decision, declaration or advisory opinion of the European Court of Human Rights; (ii) opinion of the European Commission of Human Rights ("the Commission") given in a report adopted under Article 31 of the European Convention on Human Rights ("the Convention"); (iii) decision of the Commission in connection with Article 26 or 27(2) of the Convention; or (iv) decision of the Committee of Ministers taken under Article 46 of the Convention, whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen
(b) Evidence of any judgment, decision, declaration or opinion of which account may have to be taken under this subsection is to be given in proceedings before any court or tribunal in such manner as may be provided by rules
(c) In this subsection "rules" means rules of court or, in the case of proceedings before a tribunal, rules made for the purposes of this subsection by the Attorney- General
(9) Any right or limitation thereof set out in sections 1 to 15 may be amended if
- (a) a motion proposing that amendment is carried by a majority of at least three-quarters of the total number of Members of the Parliament; and (b) the Parliament's vote on such motion is thereafter supported by a simple majority of the votes cast in a referendum of all persons entitled to vote in elections to the Parliament; and (c) the consent of Her Majesty signified through a Secretary of State has been obtained before any such motion or referendum
(10) Subsection (9) is without prejudice to the power of Her Majesty to amend or revoke any provision of this Chapter by Order in Council
CHAPTER II THE GOVERNOR Office of the Governor 23 19. There shall be a Governor and Commander-in-Chief for Gibraltar who shall be appointed by Her Majesty and shall hold office during Her Majesty's pleasure and who shall be Her Majesty's representative in Gibraltar
Powers and duties of Governor 20.-(1) The Governor shall have such functions as may be prescribed by this Constitution and any other law, and such other functions as Her Majesty may be pleased to assign to him in the exercise of the Royal prerogative
(2) The Governor shall exercise his functions in accordance with this Constitution and any other law, and, subject thereto, shall do or execute all things that belong to his office (including the exercise of any functions that are expressed to be exercisable in his discretion) according to such instructions (if any) as Her Majesty may see fit to address to him
(3) Notwithstanding the jurisdiction of the courts in respect of functions exercised by the Governor, the question of whether or not the Governor has in any matter complied with any instructions addressed to him by Her Majesty shall not be enquired into in any court of law
Governor's taking of oaths 21. Every person appointed to the office of Governor shall, before entering upon that office, take and subscribe oaths of allegiance and for the due execution of the office in the forms set out in the Schedule to this Constitution
Vacancy in the office of Governor 22.-(1) During any period when the office of Governor is vacant or the Governor is absent from Gibraltar or is for any other reason unable to discharge the functions of his office those functions shall, during Her Majesty's pleasure, be assumed and discharged by such person as Her Majesty may have designated in that behalf by instructions given through a Secretary of State
(2) Before assuming the functions of the office of Governor, any such person as aforesaid shall make the oaths directed by section 21 to be made by the Governor
(3) Any such person as aforesaid shall not continue to perform the functions of the office of Governor after the Governor or some other person having a prior right to perform the functions of that office has notified him that he is about to assume or resume those functions
(4) The Governor or any other person as aforesaid shall not for the purposes of this section be regarded as absent from Gibraltar or as unable to perform the functions of the office of Governor at any time when there is a subsisting appointment of a deputy under section 23
24 Deputy to Governor 23.-(1) Whenever the Governor
- (a) has occasion to be absent from Gibraltar for a period which he has reason to believe will be of short duration; or (b) is suffering from an illness which he has reason to believe will be of short duration, he may by writing under his hand appoint any person in Gibraltar to be his deputy during such absence or illness and in that capacity to perform on his behalf such of the functions of the office of Governor as may be so specified
(2) The power and authority of the Governor shall not be abridged, altered or in any way affected by the appointment of a deputy under this section, and a deputy shall conform to and observe all instructions that the Governor may from time to time address to him: Provided that the question whether or not a deputy has conformed to and observed any such instructions shall not be enquired into in any court of law
(3) A person appointed as a deputy under this section shall hold that appointment for such period as may be specified in the instrument by which he is appointed, and his appointment may be revoked at any time by Her Majesty by instructions given through a Secretary of State or by the Governor
(4) In this section "the Governor" means any person holding the office of Governor and includes any person discharging the functions of that office under section 22
(5) The powers of the Governor under this section shall be exercised by him acting in his discretion
CHAPTER III The Legislature Part I - The Gibraltar Parliament Legislature of Gibraltar 24. There shall be a Legislature for Gibraltar, which, subject to this Chapter, shall consist of Her Majesty and the Gibraltar Parliament
25 Gibraltar Parliament 25.-(1) There shall be a Parliament for Gibraltar, which shall be styled the Gibraltar Parliament
(2) The Parliament shall consist of
- (a) the Speaker; and (b) at least seventeen Elected Members elected in such manner and in such number as may be prescribed by any law which may prescribe a number in excess of seventeen Members if such increase or reduction has been approved by a motion supported by a two-thirds majority of the Members of the Parliament
(3) The following shall be officers of the Parliament
- (a) the Principal Auditor; (b) the Ombudsman; (c) the Clerk to the Parliament; (d) any other officer prescribed by Act
(4) The officers of the Parliament shall have such powers as may be prescribed by Act
Speaker 26.-(1) The Speaker of the Parliament shall be appointed by the Parliament by resolution passed by a simple majority of its Members and presented by the Chief Minister acting after consultation with the Leader of the Opposition
(2) The Chief Minister shall in consultation with the Leader of the Opposition and before the meeting of the Parliament at which the resolution under subsection (1) is to be debated appoint a Member of the Parliament for the sole purpose of presiding over the resolution
(3) No person shall be qualified for appointment as Speaker if
- (a) he is an Elected Member of the Parliament; (b) he is not a British citizen or a British overseas territories citizen by virtue of a connection with Gibraltar who has attained the age of eighteen years; or 26 (c) he is a person disqualified for election as an Elected Member of the Parliament under section 28
(4) A person shall vacate the office of Speaker
- (a) if a motion of no confidence in him is passed in the Parliament by a majority of two-thirds of the Members; (b) if any circumstances arise that would cause him to be disqualified for election as an Elected Member of the Parliament by virtue of section 28(1); (c) if he is nominated for election as an Elected Member of the Parliament; or (d) on a dissolution of the Parliament
(5) If the office of the Speaker is vacant or if the person holding the office of Speaker is absent from Gibraltar or is for any other reason at any time unable to perform the functions of his office, those functions may be performed by such person (being a person qualified for appointment as Speaker) as may from time to time be designated in that behalf by the Parliament upon motion being presented by the Chief Minister acting after consultation with the Leader of the Opposition
(6) No business shall be transacted in the Parliament at any time when the office of Speaker is vacant save a motion under subsection (5) for which purpose the Parliament may be convened by the Chief Minister notwithstanding the absence of the Speaker
Qualifications for Elected Members 27. Subject to section 28, a person shall be qualified to be elected as an Elected Member of the Parliament if, and shall not be qualified to be so elected unless, at the date of his nomination as a candidate for election, he is a British citizen or a British overseas territories citizen by virtue of a connection with Gibraltar who has attained the age of eighteen years
Disqualifications for Elected Members 28.-(1) No person shall be qualified to be elected as an Elected Member of the Parliament who
- (a) is, by virtue of his own act, under any acknowledgement of allegiance, obedience or adherence to a foreign power or state; or (b) is a member of the regular armed forces of Her Majesty; or (c) holds, or is acting in, a public office; or 27 (d) has been adjudged or otherwise declared bankrupt under any law in force in or outside Gibraltar and has not been discharged; or (e) is a person certified to be insane or otherwise adjudged to be of unsound mind under any law in force in Gibraltar; or (f) is under a sentence of imprisonment (by whatever name called) exceeding twelve months imposed on him by a court of law or substituted by competent authority for some other sentence imposed on him by such a court, or is under such a sentence of imprisonment the execution of which has been suspended; or (g) is not qualified to be registered as a voter at elections of Elected Members of the Parliament or, being so qualified, is not so registered; or (h) is disqualified for election by any law for the time being in force in Gibraltar by reason of his holding, or acting in, any office the functions of which involve
- (i) any responsibility for, or in connection with, the conduct of any election; or (ii) any responsibility for the compilation or revision of any electoral register; or (i) is disqualified for election by any law in force in Gibraltar relating to offences connected with elections
(2) For the purpose of subsection (1)(f)
- (a) two or more terms of imprisonment that are required to be served consecutively shall be regarded as a single term of imprisonment for the aggregate period of those terms; (b) no account shall be taken of a sentence of imprisonment imposed as an alternative to or in default of the payment of a fine
(3) The reference in subsection (1)(b) to a member of the regular armed forces of Her Majesty shall not include a reference to an officer of the Reserve of Officers of the Royal Gibraltar Regiment or to a member of the Reserve of that Regiment or other Reserve of Officers except while he is called out for actual military or naval service
(4) If it is so prescribed by the Legislature
- (a) a person shall not be disqualified for election as an Elected Member of the Parliament by virtue of his holding or acting in any public office specified (either individually or by reference to a class of office) by the Legislature; (b) a person may stand as a candidate as such notwithstanding that he holds or is acting in any public office specified (in the manner aforesaid) by the 28 Legislature if he undertakes to relinquish or, as the case may be, to cease to act in that office if he is elected as an Elected Member of the Parliament; or (c) any office specified (in the manner aforesaid) by the Legislature being an office the emoluments of which are paid, directly or indirectly, out of public funds, but which would not otherwise be a public office for the purposes of this section, shall be deemed to be a public office for those purposes
(5) Any law made in pursuance of subsection (4)(b) may contain incidental and consequential provisions, including provision that an Elected Member who has given such an undertaking as is referred to in that subsection shall be incapable of taking his seat in the Parliament until he has fulfilled that undertaking and shall vacate his seat if he has not fulfilled it within such time as is specified by such law; and for the avoidance of doubts it is hereby declared that, where a provision is made in pursuance of subsection (4)(c) in respect of any office, provision may also be made in pursuance of subsection (4)(b) in respect of that office
Tenure of office of Elected Members 29.-(1) An Elected Member of the Parliament shall vacate his seat therein
- (a) on a dissolution of the Parliament; (b) if he is absent from six consecutive meetings of the Parliament without having obtained before the termination of any of such meetings from the Speaker permission to be or remain absent therefrom; (c) if he ceases to be a British citizen or a British overseas territories citizen by virtue of a connection with Gibraltar; or (d) subject to section 30, if any other circumstances arise that, if he were not an Elected Member of the Parliament, would cause him to be disqualified for election as such by virtue of section 28(1)
(2) Subsection (1) shall be without prejudice to any provision contained in any law made in pursuance of section 28(4)(b) for the vacation by an Elected Member of the Parliament of his seat
(3) An Elected Member of the Parliament may resign his seat therein by writing under his hand addressed to the Speaker and the seat shall become vacant when the writing is received by the Speaker (or, if the office of Speaker is vacant or the Speaker is for any reason unable to perform the functions of his office, by such other person as may be specified in the rules of procedure of the Parliament)
(4) If the seat in the Parliament of an Elected Member becomes vacant otherwise than by reason of a dissolution of the Parliament, the writ for an election to fill the vacancy shall, unless the Parliament is sooner dissolved, be issued within ninety days of the occurrence of the vacancy
29 Vacation of seat on sentence, etc
30.-(1) If circumstances such as are referred to in section 29(1)(d) arise because an Elected Member of the Parliament is under sentence of imprisonment, declared bankrupt, adjudged to be of unsound mind or convicted of an offence relating to elections and it is open to the Member to appeal against the decision (either with the leave of the court or other authority or without such leave), he shall forthwith cease to perform his functions as a Member of the Parliament but, subject to subsection (3), he shall not vacate his seat until the expiration of thirty days thereafter: Provided that the Speaker may, at the request of the Elected Member, from time to time extend that period for thirty days to enable the Member to pursue any appeal so however that extensions of time exceeding in the aggregate three hundred and thirty days shall not be given without the approval of the Parliament signified by resolution
(2) If, on the determination of any appeal, such circumstances as aforesaid continue to exist and no further appeal is open to the Member, or if, by reason of the expiration of any period for entering an appeal or notice thereof or the refusal of leave to appeal or for any other reason, it ceases to be open to the Elected Member to appeal, he shall forthwith vacate his seat
(3) If at any time before the Elected Member vacates his seat such circumstances as aforesaid cease to exist, his seat shall not become vacant on the expiration of the period referred to in subsection (1) and he may resume the performance of his functions as an Elected Member
Determination of que
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