Salus populi suprema lex esto (Let the welfare of the people be the ultimate law)Marcus Tullius Cicero – De Legibus (On the Laws), Book III, s.3 – circa 40 B.C.
Gibraltar – A British Overseas Territory
Gibraltar is a British Overseas Territory. It is under the sovereignty of Her Majesty’s Government for the United Kingdom. This has been the position for the past three centuries. Gibraltar was originally a military garrison with a tiny civilian population. In its odyssey from times of besiegement to the present day, Gibraltar has developed into a modern and vibrant International Offshore Finance Centre. It boasts a modern legal system which upholds the rule of law and maintains the principle of parliamentary sovereignty.
Gibraltar in International Law
As a matter of public international law, Gibraltar does not enjoy international statehood and due to political factors, remains on the United Nations List of non-self-governing territories – Spain continues to assert her irredentist claim over the sovereignty of Gibraltar.
Substantive Law of Gibraltar
Gibraltar Law adopts the common law legal tradition. In essence, the substantive law of Gibraltar comprises the following:
- Local Statutory Law (promulgated by the Gibraltar Parliament);
- Subordinate Legislation;
- The Common Law of England & Wales (subject to local modifications);
- English Statutes that have been expressly or impliedly extended to Gibraltar;
- Retained EU Law following Brexit;
- Strasbourg Jurisprudence; and
- International Law (International Treaties that the UK Government has extended to Gibraltar; and furthermore, the rules of customary international law – in the absence of any particular legislative measure or high judicial decision to the contrary).
Like other offshore jurisdictions that form part of the common-law family, Gibraltar has its own Written Constitution with, inter alia, a bill of rights enshrined therein and constitutional safeguards based on the doctrine of the separation of powers.
Gibraltar has its own legislative body (officially called the “Gibraltar Parliament”), which is unicameral in nature. One sees this type of law-making institution in other British Overseas Territories such as: the British Virgin Islands, The Cayman Islands, and the Falklands.
Primary & Secondary Legislation
The Gibraltar Parliament is the originator of the main source of legislation in the territory, being local ‘statutory law’. In the exercise of its legislative capacity, the Parliament also confers, where appropriate, law-making powers upon local statutory bodies as well as Ministers of the Crown – the exercise of such powers gives rise to the form of law known as ‘delegated legislation’. Domestically, these delegated laws are as much law as the very parent statute which enables their coming into being.
Consolidated Index of the Laws of Gibraltar
Laws enacted by the Gibraltar Parliament are published on the Gibraltar Government’s on-line website which can be found at the following address: https://www.gibraltarlaws.gov.gi/legislation-index. This website is a useful and indispensable tool for those interesting in learning more about the laws of Gibraltar. Aside from the locally enacted legislation, it includes the publication of useful materials such as Gibraltar Parliamentary Bills, Supreme Court Judgments, Command Papers and Consultation Papers.
The Gibraltar Gazette
In keeping with the English law tradition, every piece of domestic legislation in Gibraltar begins its life as a ‘Bill’, which is then put through the Parliamentary process, and either made law or not. Government Bills for proposed legislation, including amendments or repeals will begin by being published in the Gibraltar Gazette.
The Gibraltar Gazette is the official newspaper of HM Government of Gibraltar in which many official legal matters appear, such as: draft legislation (in the form of Bills); notices of Crown appointments; notices of local business licence applications; and notices of dissolution or winding-up of companies registered in Gibraltar, or bankruptcies.
Access to the Gibraltar Gazette periodical publications is a paid subscription only service.
Gibraltar Procedural Law
Many rules of court in Gibraltar are premised largely, although not entirely, on English Rules of Procedure. As mere examples :
- In terms of ordinary civil disputes, the English Civil Procedure Rules 1998 (as amended) apply to Gibraltar (subject to any local modifications); and
- In the criminal jurisdiction, the Criminal Procedure & Evidence Act 2011 provides, inter alia, for the applicability of the English Criminal Procedure Rules (as amended from time to time) apply.
Gibraltar Court Hierarchy
The law courts of Gibraltar can be said to be an abbreviated form of the English system of courts. Notable modifications of the English model are the obvious absence of a county court system, as well as the non-existence of a locally situated final court of appeal, like the UK Supreme Court.
The Superior Courts of Record
The superior courts of record established in Gibraltar are as follows (in order of precedence):
- The Gibraltar Court of Appeal; and
- The Supreme Court of Gibraltar
The Inferior Courts & Tribunals
The inferior courts comprise, for example, the local Magistrates’ Court and Juvenile Court. There are a host of administrative tribunals established by Statute which hear, e.g. employment disputes, matters pertaining to public housing, income tax appeals and so on (much like in England & Wales).
Judicial Committee of the Privy Council
Appeals from the Gibraltar Court of Appeal lie to “Her Majesty in Council” – that is to say, to the Judicial Committee of the Privy Council which sits at Middlesex Guildhall, by Parliament Square in London.
The Privy Council is established under the Judicial Committee Act 1833 and is the highest court of appeal, or court of last resort for the jurisdiction of Gibraltar. The Privy Council performs a similar adjudicative function in respect of other former British states who achieved independence and have retained the right of appeal to London; the other British Overseas Territories as well as the Crown Dependencies – such as Jersey, Guernsey and the Isle of Man (although those Dependencies are not part of the UK).
In Gibraltar, the right to appeal to the Privy Council is a constitutionally enshrined right within the text of the Gibraltar Constitution Order 2006.
Legal Doctrine of Stare Decisis
In Gibraltar, the courts adhere to the maxim stare decisis, which lies at the heart of the common-law doctrine of judicial precedent.
On matters of EU Law – following Brexit, decisions of the Court of Justice for the European Communities based in Luxembourg are no longer binding on the Gibraltar superior courts of record, up to and including the JCPC in determining an appeal. However, European Court rulings are not rendered totally nugatory by Brexit in that they can still be taken into account where they are relevant to issues being adjudicated before any Gibraltarian proceedings (including the Privy Council).
In appropriate cases, the judgements and decisions of the following overseas courts can be applied in Gibraltar despite the fact that such decisions are not in themselves absolutely binding upon a Gibraltar Court when determining a local case:
- Scottish as well as Irish courts;
- Other common law jurisdictional courts such as, for example, that of British Virgin Islands and the Cayman Islands;
- Australian and New Zealand courts; and
- The courts of the United States of America.
The judgements or decisions handed down by the aforementioned courts are all said to carry ‘persuasive’ effect in so far as Gibraltar law is concerned.
If you need assistance on any matter concerning Gibraltar Law, please contact Ian Watts, Barrister-at-Law & Acting Solicitor.
© Ian Watts, Gibraltar Lawyer, 2017-2021. All rights reserved.