Thursday, June 02, 2005

‘Can of worms’ opened over Attorney General's role

Brian Reyes reports

Court case shakes Constitution

The lid has been lifted on “a can of worms” that raises fundamental questions about the constitutional position of the Attorney General in Gibraltar, the Supreme Court heard yesterday.

The main issue debated during a two-hour court session hinged on the role of the Attorney General, Ricky Rhoda QC, as advisor to the Government of Gibraltar as well as to the Governor on British interests here.

In the past, local politicians have raised questions over the Attorney General’s dual function.

Apart from his job as the director of public prosecutions, the Attorney General – an ex officio member of the House of Assembly - has also traditionally been called upon to provide counsel to both the Government of Gibraltar and the Governor.

But the way in which lawyers acting for the Ministry of Defence have filed a case dealing with MoD tenants – having submitted skeleton arguments to the court without Mr Rhoda’s prior approval - has raised the possibility of a conflict of interest.

Underlying the case is the key question of whom the Attorney General ultimately represents.

Judge Anthony Dudley, presiding over the hearing, colourfully described the problem when he referred to “the creature with two heads but [which], I imagine, can only speak with one voice.”

The case in hand deals with a lawsuit filed in the Attorney General’s name by the Ministry of Defence’s local lawyers, Isola & Isola, against a number of people resident in military properties in Gibraltar.

The ministry wants to repossess the houses and claims those living in the premises are now trespassers.

The complex case could, hypothetically, eventually draw the Government of Gibraltar into proceedings because of an agreement with the MoD under which the local government would re-house the tenants before they can be evicted.

If that should happen, the Attorney General would under normal circumstances represent the Gibraltar government in court. But if he was also representing the MoD as the claimant in the lawsuit, then whom does he ultimately stand for?

Lawyers for the MoD argue that the Attorney General, who is appointed by the Governor in the Queen’s name, is in these circumstances a representative of the British government in Gibraltar.

But lawyers for the tenants facing eviction reject that argument and yesterday, the Attorney General himself agreed in part.

While he accepted that the court should examine “the narrow argument” of whether or not he was obliged to represent the British government in this particular case under the terms of the Crown Proceedings Ordinance, Mr Rhoda distanced himself from the broader interpretation that he had a duty to represent the British government in all events. If he accepted that interpretation, Mr Rhoda said, it could potentially undermine his independence as public prosecutor and his role at the House of Assembly. “That argument will not run in my name and I have made that clear,” the Attorney General said.

The implication of that statement – that the Attorney General disagreed with the arguments that were being presented in his name by the MoD’s lawyers – sent ripples of excitement through the court.

“What I find unusual is that the constitutional position of the Attorney General is the fundamental issue here, but the Attorney General is not confident of what is being argued in his name,” said Judge Dudley.

The Attorney General, referring to the skeleton arguments submitted by the MoD’s lawyers in his name, replied:
“Your lordship should not assume that those skeletons went out with my consent.”

When the judge ordered that new skeleton arguments be filed ahead of the next hearing, the Attorney General said that he expected to both see and approve the MoD lawyers’ arguments before they were submitted to the court.

The rift was plainly evident. “Clearly there is a huge can of worms and the lid is open,” Judge Dudley concluded.

The matter has now been set for a hearing in mid-July, at which the key point of whether or not the Crown Proceedings Ordinance obliges the Attorney General to act for the British Government in this case will be reviewed. The outcome of that hearing will determine whether or not the hypothetical, and potentially explosive, scenarios outlined yesterday actually become reality.


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