Tuesday, June 21, 2005

Unions and MoD clash in court

TGWU and Prospect press demand for consultation - Dominique Searle reports

TGWU and Prospect trade union leaders trooped into the Supreme Court with their lawyers yesterday set to resist Ministry of Defence attempts to argue that the unions cannot have their claim against the MOD heard locally.

The unions are alleging a lack of proper consultation by MOD over privatisation plans. The unions want these to be halted and a consultation process initiated.

In the wake of the general election in Britain there has been no indication as to whether or not the British Government is reconsidering its approach to the cuts.

The unions are expected to meet with Armed Forces Minister Adam Ingram next week and it is believed that the new Defence Minister Dr John Reid has asked to be personally briefed.

The two day hearing is set to end today when Chief Justice Derek Schofield will be left to decide whether or not the law in Gibraltar recognises the MOD as a party that can be challenged in this case.

Luis Montiel, TGWU District Officer with his branch officers and his Prospect counterpart Michael Tampin, along with UK Prospect national officer Steve Jary, sat through the day’s hearing.

Peter Isola Sr, appearing with Christian Rocca, argued that neither their client, the MOD, nor the Secretary of State, are the proper defendants in this case “and are not persons who can be sued in this court as separate entities”.

Mr Isola argued that the proper forum would be the courts in the UK. Locally, he said, the Crown could only be sued in the name of the Attorney General.

This was a day of legal submission and, not for the first time in recent weeks, arguments touched on the raw nerve of constitutional issues and the political realities of how Gibraltar functions.

The clash of the arguments, put forward for the unions - for TGWU by James Levy QC and Lewis Baglietto, and for Prospect by Keith Azopardi – amounts to the unions saying that European law enacted in Gibraltar prevails and allows their claim to be heard in Gibraltar and the MOD side saying that, except where an ordinance specifically says so, the Crown cannot be sued and that the MOD is not a recognised legal person in Gibraltar.

Mr Justice Schofield was prompted to ask several questions that went to fundamental issues relating to the UK – Gibraltar relationship in law.

“I hesitate to say that we are still a colony,” said Mr Isola.

But Mr Azopardi argued that it is the legislation that emerges from Brussels that binds all parties and that, because a directive on Acquired Rights had been made law locally, this imposes a requirement for consultation under employment legislation. The UK itself would be liable if Gibraltar failed to implement EU law.

Mr Isola said that there remained a difficulty in bringing proceedings against the Crown in Gibraltar whilst in Britain that issue was resolved because the departments that can be sued are stipulated. “I am saying that under the law of Gibraltar the MOD cannot be made the defendant,” he said. Mr Isola said that the position in Britain is that, where there is doubt, the Attorney General is sued and this would be the position in Gibraltar.

Mr Justice Schofield was prompted to state that the AG here is the Attorney General of Gibraltar and “has no function in right of the Crown in UK.” The judge said that the AG is appointed by Her Majesty for Gibraltar, prompting Mr Isola to conjure the curious image of the Crown having two heads in Gibraltar.

Mr Schofield made the point that the Constitution says that the Governor is the Governor and Commander in Chief. The AG, he said, advises the Governor, but not the MOD who have their own legal advisors.

Mr Azopardi told the court that it was clear that the MOD has taken the decision to “contractorise” and that “it is clear that it is the British Government that has decided to take this decision. They should retain liability and they were doing this for “what they euphemistically call efficiency savings” for the UK Treasury. He said that they operate in Gibraltar with the same logo and recognisable persona as elsewhere. Under the EU directive he said, the case should be heard in Gibraltar.

The hearing continues this morning at 10 am when Mr Levy is due to put forward the union’s main arguments on jurisdiction and EU law.

Related Links:

Gibraltar News Online Contractorisation Poll

26 May 2005 MoD Contractorisation hearing set for June

12 May 2005 Unions escalate MoD dispute

19 April 2005 Unions declare a united front on MoD Contractorisation

15 April 2005 No progress in Union-MoD Contractorisation talks

12 April 2005 MPs urge Hoon to halt ‘Done Deal’

05 April 2005 MoD rejects Union lawsuit threat

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