BLOG 8 - THE (ANTI) CORRUPTION PROBLEM
First let’s be clear. The new Anti-corruption Bill is a welcome and most necessary step. The Government has been postponing this for over a decade, and I appreciate that taking this step is both a recognition that the problem exists, and an attempt to address at least part of it.
It is not easy to admit that there is a corruption problem when you’ve been in charge for 11 years (and therefore, for which you are responsible), and for this rare exercise of honesty we are very grateful.
For a Government that has either created or been tolerant of a corruption problem that it recognises as real, it is also a bold move to admit that the authorities currently tasked with curbing corrupt behaviour are ineffective. Because this Bill doesn’t emerge in a vacuum; all of the behaviours it cites are already considered either illegal, or at least politically offensive.
Let’s not forget that there is already an anti-corruption authority in Gibraltar, the RGP. It is already part of their remit to control many of the issues that this new authority will also tackle, in fact, it will still be the job of the RGP to prosecute investigations undertaken by this new authority. The fact is that judging by the need for this new authority, the Government is saying that the RGP is currently incapable of fulfilling its remit and is therefore either compromised, underfunded or both.
I it is also my view that some of the problems that affect the levels of corruption in Gibraltar are systemic, and therefore difficult to tackle without making enormous changes to our political and economic system. This makes the task of legislating against corruption immensely challenging.
THE BILL
That said, there are clear problems with this Bill. The way I see it, these are the main ones:
The biggest problem in Gibraltar tends not only a problem of legislation, but a problem of ENFORCEMENT
To adequately enforce laws that can effectively take on the centres of power in Gibraltar, we need authorities that are:
1. INDEPENDENT
This is the first systemic issue. Most people in Gibraltar are compromised by an omnipresent administration that is also THE KEY PLAYER in the economy, with enormous scope for the exercise of discretionary power in the provision of grants and subsidies, Government contracts, jobs, public housing etc.
In Gibraltar, if you attack the Government, the Government can make your life extremely difficult. Even with the protections granted to whistleblowers, there is too much scope for the arbitrary exercise of power and resources to guarantee there are no repercussions.
In the Bill, it states that: The Anti-Corruption Authority consists of the following members-
(a) the Chairperson appointed by the Chief Minister
(b) four other persons appointed by the Chief Minister in consultation with the Leader of the Opposition and, who, in the opinion of the Chief Minister satisfy a series of criteria
Apart from the independence problems I have already mentioned, this Bill clearly gives too much power to the Chief Minister, and if you dig a little deeper, perhaps also to the Leader of the Opposition.
Why is the Chairperson appointed by the key figure that the Chairperson has to scrutinise?Can you see a CM-appointed chairman of the anti-corruption authority investigating potential corruption directly affecting the office of the CM?
Why is everybody else elected between the LOTO and the CM? Let’s get a bit creative here. Imagine there is a world in which Government and Opposition are mostly co-opted by one particular industry and -yes, I know this is pretty wild, but walk amongst unicorns with me- whose economic interests are deeply intertwined with those of the Gibraltar political establishment.
Can you see this anti-corruption authority investigating, for example, undue links between Government and the interests of powerful law firms, for example?
There are plenty more nooks and crannies within this Bill that afford the CM excessive discretionary powers that could be used to manipulate the work of the authority. For example, under the all-encompassing and loosely defined pretexts of the protection of security, public interest or governance, the CM may deprive the authority of information, answers or documents necessary to investigate corruption allegations. By applying this same criteria, the CM may also tamper with reports by censoring parts of the information provided to the authority.
The CM also has the power to amend the list of offences susceptible to investigation, which means in practice that the CM will have the power to define what constitutes corruption, and what kind of corrupt behaviour this authority can investigate.
I know that it is completely inconceivable that the CM would make use of these discretionary powers for anything other than the protection of the general interest. Of course he would never move a finger to protect his supporters, funders, colleagues or employers. Surely he would never apply these loopholes to use this Bill as a weapon against his perceived enemies.
But maybe, just maybe, we should legislate in a way that doesn’t trust the wolf to guard the sheep. We should not give the man in charge the ability to escape proper public scrutiny or weaponise our anti-corruption authority if we want to really tackle the corruption problem that obviously exists.
And:
2. ADEQUATELY RESOURCED
Without adequate resources no authority can properly do its job. Investigating corruption allegations is a complex and costly affair, but it can also bring substantial returns. In fact the World Bank calculates a surcharge of some 10% to the cost of all business in highly corrupt countries. In Gibraltar, most regulatory authorities are left largely toothless and easily manipulable by chronic (and one assumes deliberate) underfunding, and in order to stop this we need adequate levels of funding to be guaranteed as part of the law.
Will this new Authority and the anti-corruption branch of the RGP be given the safeguards and the funding to ensure they have the necessary reach and muscle?
MORE THINGS THAT THIS BILL SHOULD TACKLE, BUT DOESN’T
Government does many of its deals behind an iron curtain of Government-owned companies - or companies owned by Government puppets - the details of which it often refuses to disclose to the general public. This toxic embrace between the public and private spheres, and the opacity that it creates for the taxpayer, will not be solved by an anti-corruption authority of the kind that is being proposed. We need an anti-corruption policy that somehow directly outlaws the opaque use of ANY public money, particularly the crony-capitalist use of these private companies to funnel public funds to party acolytes.
Again, join me for a walk among the fairies and the rainbows and imagine the following: a Government wanting to fund a project of little-to-no commercial value, which is going to be executed by a company owned by party stalwarts. This company appear as owned by other companies, trusts and the like, with the ultimate beneficiaries hidden from public scrutiny.
With the current setup these deals are perfectly legal, and there is no way we can know the important details of what is happening behind the scenes. This new law does not appear to put an end to these practices, particularly when you take into account the lack of independence issues that will arise from it.
THE FIX (or just a few ideas)
The problems are challenging, no doubt, but how can we fix them?
Considering there is a simple numbers issue involved in corruption (the more people involved, the more people you need to corrupt to get your way), how about we start by making a larger pool that ensures all opposition parties in parliament have representation?
Also, considering we want this authority to scrutinise our politicians, how about we also take this initiative outside of the realm of the political? What about we include prominent members of civil society, the Ombudsman and some members of the judiciary to the panel entrusted to devise the makeup of the authority? Why not involve some form of jury of ordinary citizens, who are ultimately the ones who pay the price of corrupt authorities?
How about we get this larger, more representative, more diverse (in terms of interests and agendas) and therefore more independent pool to choose the members of the authority and decide the level of funding it needs?
And while we’re at it (as I suggested in THE BRIDGE 7 about our democratic system) how about we tackle some of the systemic political issues that provide the backdrop for a lot of our corruption?
How about we implement the much-trumpeted Code of Conduct for Ministers that remains largely without effect?
How about we enact an anti-revolving door legislation that protects our Parliament from corporate control?
How about we publicly fund political parties so they do not need the funding of corporate interests and wealthy lobbyists?
What about bringing in a system of proportional representation that allows new parties and independents a better chance of competing with the existing political establishment?
How about we implement term limits to ensure we don’t get deeply entrenched and compromised CMs with their finger in every pie?
WE NEED BOLD, INNOVATIVE IDEAS
Two days ago Sir Keir Starmer presented a battery of reforms aimed at tackling the problems of corruption and sleaze that have become extremely apparent under the current Conservative administration.
https://labour.org.uk/.../Commission-on-the-UKs-Future.pdf
It is an ambitious proposal, nestled within a courageous exercise of introspection about the problems the country faces, including those of an extremely complex, systemic nature, like those I have been trying to highlight from my humble corner. It goes as far as to suggest important changes in the UK´s political system, like replacing the House of Lords with a more democratic, representative territorial chamber. It also includes very concrete and innovative anti-corruption proposals, which includes ideas like:
• Eliminating foreign money from UK politics
• Banning the vast majority of second jobs for MPs
• A new Independent Integrity and Ethics Commission, with the power to investigate breaches of a new, stronger code of conduct
• A powerful new body to ensure all appointments in public life are made on merit
• Juries of ordinary citizens to determine whether rules have been broken
• A new UK wide anti-corruption Commissioner
The Labour analysis and its proposals, while not perfect, are an honest and courageous attempt at fixing the problems. What we are getting from this administration, while a step in the right direction, is just one step above an exercise of window-dressing.
Speak soon,
Marlene