Examination of Witnesses (Questions 160
- 179)
TUESDAY 20 APRIL 1999
THE HON
PETER CARUANA,
QC, MR
ERNEST MONTADO
and MR ALBERT
POGGIO, MBE
160. A vessel fishing with a three man crew
would have someone in charge of it. I think you are ducking the
question. What you are doing here in bringing the whole crew,
whether it is a three man crew or a 15 man crew, as in the case
of this vessel, five of whom failed to turn up in court——
I put it to you again would it not make sense to amend that section
of this fairly widely ranging act in order not to exacerbate relations
in any future dispute?
(Mr Caruana) I have to say that no one has made
that specific complaint on the Spanish side, at least not to me.
That is not amongst the grievances that the Spanish fishermen's
representatives have brought to me. I defer to your greater knowledge
on matters of UK fishing law.
161. And I defer to your legal knowledge.
(Mr Caruana) If you say that that is how UK laws
are struck then I accept that from you.
Chairman: It is not
just the UK. Dr Godman is saying it is the normal law of the sea
that the skipper is held to be responsible. Not only, in Dr Godman's
view, does that not make sense, surely it exacerbates relations
with the Spanish community.
Dr Godman
162. I think it is unhelpful. Every maritime
Member State of the European Community holds to the rule that
it is the skipper who is to be charged with an illegal fishing
activity. I told Ms Quin that in my view this is unacceptable.
All I am saying is that in the interests of maintaining friendly
relations with the local Spanish maritime community it would make
good sense, would it not to give very serious consideration to
amending this law?
(Mr Caruana) It is not for the Government of Gibraltar
to decide who to charge and who not to charge. I suppose it is
always open, even with the law as presently framed, to the prosecuting
authorities to choose against whom they bring charges. I will
take advice on the matter to see the extent to which Gibraltar
is out on a limb on this issue, but I must emphasise the point…and
it remains to be seen to what degree it is a relevant distinction
or a distinction without a difference—that this is not a
maritime fisheries protection law, this is a general law, only
one small bit of which relates to fishing and it is for environmental
protection reasons, it is not for the protection of fishing stocks
reasons.
Dr Godman: I am not
wishing to be facetious. These fishermen were not collared because
they were chasing rabbits, they were collared because they were
fishing illegally as far as this law is concerned. So however
minuscule the fisheries aspect of this legislation may be, the
police apprehended and your prosecuting authorities brought to
the court the whole crew of a fishing vessel and I am saying that
fishermen elsewhere and prosecuting authorities in our coastal
communities would look askance at this. As I say, I have this
written answer from Mr MacDonald of the Scottish Office and he
mentions 62 skippers being successfully prosecuted for one or
more infringements in the Sheriff Courts in Scotland and the same
holds for England and Wales, for the Republic of Ireland, Northern
Ireland and other maritime states of the European Union. All I
am suggesting to you is that it might help matters if this aspect
of the law is amended so that you apprehend the skippers and not
the galley boys.
Chairman
163. Chief Minister, will you take advice
on that and come back? I would like to move on.
(Mr Caruana) Yes, Mr Chairman.
Mr Illsley
164. Is it also possible that the Nature
Protection Ordinance could be amended to take account of the agreement
you arrived at with the Spanish fishermen? The enforcement authorities
in Gibraltar will be placed in an awkward position in that they
are having to enforce the Ordinance on an agreement between yourselves
and the fishermen, which is not the actual wording of the Ordinance.
Is it possible for that to be amended again to reflect the agreement
that you reached which is that some fishing could take place?
(Mr Caruana) To the extent that the agreement
has the effect that you described, it does not place the law enforcement
agents in Gibraltar in a new position because that has been their
position since 1991 when the law was passed, so there has been
tolerant policing of the law since the day that it was enacted.
The essential aspect of the agreement that I entered into with
the fishermen's representatives as far as Gibraltar is concerned
is that it removed the challenge to the validity of the law and
that remains the case, so the challenge remains removed. At the
moment we have a situation in which fishing is taking place on
the same basis as it did between 1991 and 1997 and the validity
of the law of that and any other law that the House of Assembly
in Gibraltar may wish to pass in respect of those waters are not
under challenge as against the situation where Gibraltar changes
its laws every time some sector or other of Spain decides that
it does not like the law of Gibraltar. We see those as very different
situations. In other words, we would not be content to change
our laws whenever we came under pressure from Spain to do so because
we think that that would create a dangerous precedent, but we
are willing to conduct our affairs in a way which minimises the
scope for unnecessary local friction.
Mr Rowlands
165. Minister, I appreciate the very skilful
way you sought to diffuse the situation. Do you also believe that
the British Government handled it well and that the Foreign Secretary
and Ms Quin helped and supported and underpinned your efforts
in such a way that it was an example of good co-operation between
yourselves and the FCO and ministers on this occasion?
(Mr Caruana) You are referring to the fishing
dispute?
166. Yes.
(Mr Caruana) The outcome was a happy one even
though it was a difficult route to get to it. Let us not forget
that there was civil disorder in Gibraltar in the immediate run
up to the situation. There was a lot of talking going on between
the British Embassy in Madrid and the Spanish Government which
led to the understanding between the Foreign Secretary and his
Spanish counterparts and I am not satisfied that we were kept
sufficiently abreast of that part of it. I believe that that in
turn led to the sort of nuances and ambiguities which subsequently
caused the difficulty of misinterpretation in Spain, misinterpretation
in Gibraltar, misinterpretation in the United Kingdom, which led
to everything that happened after October 1998 until 4th February
1999. In the event we decided to take the bull by the horns and
to try and sort it out at a local level. The British Government
subsequently welcomed and supported our agreement and we are very
grateful for that support and that backing up of what we had done.
Of course, immediately prior to my entering into that local understanding
I had asked His Excellency the Governor whether he would be willing
to allow the law to be enforced in that way given that law enforcement
is his constitutional obligation and I could not go on and enter
into an understanding on which I could not deliver in terms of
enforcement. So having established with His Excellency that he
would be so willing, I then went off to do this understanding.
I think it would be accurate to say that both Gibraltar and London—and
I would have hoped also Madrid, alas it has turned out not to
be so—would just have been glad to have seen the back of
this problem. To that extent it has worked well for both of us.
To say that the result was achieved as a result of close team
work throughout I think is perhaps overstating the position.
167. When we were with you this whole question
of a new protection vessel arose. Can you just update us on that
issue? I gather the Government has said that it is willing to
make a contribution, but, of course, the initial budgetary decision
is yours.
(Mr Caruana) Let us be clear, the Government of
Gibraltar and the taxpayer of Gibraltar funds the entirety of
the cost of the Royal Gibraltar Police and that includes maritime
capabilities in terms of police boats. When there are threats
which go beyond ordinary law enforcement requirements or, indeed,
when there are incursions into British sovereign waters by Spanish
civil guard boats and helicopters, then it really goes outwith
the scope of ordinary policing functions and ordinary policing
resources and becomes more, in the case of fisheries protection,
a fisheries protection matter which in the United Kingdom is also
not done by the ordinary coastal police. When it is a question
of upholding British sovereignty of these waters then it is very
much a matter for the Royal Navy which is charged with that function.
The issue of the fisheries protection boat and who would pay for
it has to be seen in the context of that distribution of responsibility.
168. So what is the current position?
(Mr Caruana) The current position is that there
is now no such vessel there, nor is there any pressure for one
to be sent down because the situation following the entering of
the fishing agreement is calm. In other words, to the extent that
fishing is taking place, it is taking place in accordance with
the terms of the agreement. When they breach the agreement the
police is able to enforce it with their own resources because
they go whenever they are asked to go.
169. I can understand a difficult emergency
arises and there is then the question of whether or not the Royal
Navy comes in and gives you support. I thought there was a specific
issue about the commissioning of a protection vessel. It was a
police vessel, was it not?
(Mr Caruana) There was at the time, in other words
immediately before the entering into of the settlement of the
matter so to speak, increasing incidents on the water. The fishermen
were doing what they pleased and defying the law enforcement agencies
who did not feel able to engage the Spanish fishermen in enforcement
of the law because they felt that they were under-resourced to
do so. At that stage, at the height of the crisis and in the 18
months leading up to the settlement, His Excellency the Governor
and the Commander of British forces in Gibraltar were concerned
that they did not have available the resources that they felt
they required to discharge the functions for which they are responsible.
Chairman
170. And you are saying this is no longer
a live issue?
(Mr Caruana) That was the context in which they
were asking, with Gibraltar Government support, HMG for those
resources and I understand that there was some internal debate
within HMG here and, indeed, between His Excellency the Governor
and the British Government here about whether, when and in what
circumstances those resources might be made available. That situation
in a sense was diffused. That issue fell away with the entering
into of the local fishing agreement because the need for those
resources was eliminated in that there was no longer defiance
of the law.
Mr Rowlands
171. So there is no existing request from
the Royal Gibraltar Police for the funding of a new boat by the
British Government?
(Mr Caruana) That is a completely unrelated issue.
Chairman
172. What is the current position on the
question of the police requirement?
(Mr Caruana) That is nothing to do with the fishing
situation. The police ask from time to time for a renewing of
their resources generally, not just their seaborne resources but
their maritime resources. For example, the Government is now spending
a large amount of money on a new radio system for the police.
One of the requests that they have put in is for a new launch
to replace one of their existing launches which is getting on
in years. The Government of Gibraltar has agreed to look at that
request and indeed the Foreign Office has offered to contribute
to the funding of that launch. But let us be clear, that is not
the launch which, if had been available during the fishing crisis,
would have obviated the need for the resources that His Excellency
the Governor was then calling for.
173. So that is under consideration?
(Mr Caruana) Yes. It is a different issue.
Mr Illsley
174. Do you think there would have been
any advantage to Gibraltar had the British government acted at
your request to reject the Matutes proposals outright back in
January of last year? Do you still now believe that the proposal
should be rejected, with some official form of rejection, as opposed
to allowing it to remain on the table?
(Mr Caruana) It depends on how you see the future
of the Gibraltar issue unfolding. If you believe in seeking a
viable, practical, relevant way forward then the sooner everybody
understands what the parameters of the possible are the better.
Therefore the sooner the British Government makes it clear to
the Spanish Government that its aspirations to obtain shared,
still less complete sovereignty of Gibraltar is not a viable way
forward, the sooner the possibility at least arises of Spain modifying
her position, moderating her approach and engaging in a more practical
way forward that leaves the issue of sovereignty to one side.
The position is that Spanish sovereignty, whether it is shared
for an indeterminate period of time followed by complete Spanish
sovereignty or any permutation of those two, is completely unacceptable
to the people of Gibraltar. The British Government's position
is that it will not enter into an arrangement on sovereignty unless
they are acceptable to the people of Gibraltar. Therefore, it
is not clear to me what purpose it serves to leave on the table
a set of proposals which the British Government is committed not
to accepting, which are not viable in Gibraltar because they are
unacceptable to the entirety of the population, and which simply
gives the third party to the dispute, frankly, false hopes of
what viable parameters for a possible solution to the problem
there are.
175. Is not the other side of the coin,
had the proposals been rejected outright, that the problems on
the border dispute, on recognition of ID cards, driving licences
and all the rest of it, could have been intensified by the Spanish
Government? Could they have increased the pressure on Gibraltar
as a result of an outright rejection?
(Mr Caruana) Yes, I think it is more than just
a possibility; I think this is the so-called Plan B, which some
people say is what we started to see unfolding on the 4 February
this year. Indeed, the document in which SenÅor Matutes
tables his proposals, the document that he submitted to the Foreign
Secretary on 10 December 1997, contains specifically threats of
that sort in the event that the proposal should not prosper or
should be rejected. I think it is much more than a possibility.
The point is that it is not right that Gibraltar should be locked
into a situation under a constant threat of measures which ought
not to exist. The idea in the European Community, on the eve of
the 21st Century that we are trying to build, that a community
of 30,000 British subjects who have, according to the British
Government, the right to self-determination, albeit it is curtailed
by the Treaty of Utrecht, that we should be forced to live in
a situation in which we either agree to talk about our sovereignty
or else all hell will be let loose on our border and in various
other aspects of our life, is not the vision of Europe which I
suspect is shared by many people, at least not this far West in
Europe.
176. Just following on from that, do you
think the Brussels Process has outlived its usefulness and should
be discontinued? Do you not think there has to be some dialogue
between Spain and the United Kingdom in relation to Gibraltar
and Gibraltar issues?
(Mr Caruana) Absolutely. It is not a question
of whether there needs to be dialogue between the United Kingdom
and Spain; I would like there to be dialogue between Gibraltar
and Spain. I do not find dialogue with Spain to any extent an
anathema; indeed, I have been seeking to establish it for the
last three years with Madrid. The question is not whether the
Brussels agreement has outlived its usefulness, or do I not think
there should be dialogue with Spain—those are not the only
two possibilities. Dialogue between the parties need not be limited
to the Brussels Process. That said, the position of my Government
is that we are willing to take part in dialogue involving the
United Kingdom and Spain, even under the Brussels Agreement, provided
that the structure of that dialogue is modified so that it is
not purely bilateral dialogue between the United Kingdom and Spain
(and there I go back to the question asked by Ms Abbott about
two flags, three voices) but establishes a process of dialogue
in which Gibraltar feels it is taking part in a way and with a
degree of representation, and with a quality of participation,
which reflects the fact that ultimately what is being discussed
is Gibraltar and our affairs; and that to do that in a process
of dialogue, whether it is called Brussels or anything else, which
is structured purely bilaterally between London and Madrid is
to genuflect, indeed, it is to accommodate in full, the Spanish
position, the underlying thesis of the Spanish case, which is
that Gibraltar is an issue between London and Madrid in which
the people of Gibraltar have no rights because we are, in effect,
an artificial population squatting on what is a piece of Spain
occupied by the United Kingdom.
177. I wanted to ask Mr Caruana's opinion
as to how much Spanish public opinion and political opinion agrees
with Matutes, or whether he is out on a limb on this, or whether
there is general agreement within Spain regarding his views?
(Mr Caruana) Conducting our political relations
with Madrid is complicated enough without my further complicating
it by involving myself in internal Spanish matters. I only challenge
SenÅor Matutes, I only engage SenÅor Matutes when
he subjects Gibraltar to what I think are unwarranted and damaging
allegations, and then I take the view that it is my duty to defend
Gibraltar in the face of those allegations. I would not wish to
participate in an internal Spanish debate about how widespread
is Spanish public opinion and support for its Government's position,
except to this extent, and I think I am not breaking that principle
by saying this: the Spanish Government's own polling organisation
conducts annual polls about the view of Spanish public opinion
in relation to the Gibraltar issue and the figures constantly
increase about those who believe that the Gibraltarians should
be allowed to decide their own future; I think the figures are
now hovering around 27 per cent. Obviously if you go up to a Spaniard
in the street and ask him, "Do you think Gibraltar is British
or Spanish?" they will say, "Gibraltar is Spanish";
but by the same token I think that the vast majority of Spanish
citizens do not lie awake at night in their beds concerned about
Gibraltar, concerned about what its future might be; and therefore,
to an extent, the continuation of this issue in Spain is very
much politically driven rather than street driven.
Mr Rowlands
178. If I got your words down correctly
you said, "The sooner Spain realises its aspirations are
not possible the sooner they are likely to moderate their position".
There is not a shred of evidence to believe that that would happen.
If the British Government terminated any discussions on the sovereignty
issue surely Plan B would come into action more quickly than niggling
obstacles and obstructions already created?
(Mr Caruana) The rejection of the Matutes proposals
is not synonymous with discontinuing discussions on sovereignty—indeed,
they are two very different things. The previous British Government,
albeit belatedly, in 1993 eventually got around to rejecting outright
the Moran proposals tabled in 1985, which were substantially indistinguishable
from the present proposals. All hell did not then break out loose.
The world did not end because Britain simply said to the Spaniards,
"These proposals that you place on sovereignty are not acceptable
to us". They might also say, if they wanted to, "And
they are not acceptable to us because they are not acceptable
to the Gibraltarians, and we are committed not to entering into
any arrangements contrary to their wishes". One thing is
Britain's commitment, with which we are not overjoyed either let
me say, to discuss sovereignty with Spain under the Brussels Agreement,
but it is there. That is one thing. A very different issue is
the rejection of these particular sovereignty proposals, which
does not mean that whatever discussions take place cannot continue
to take place provided that they remain subject to the British
commitment that they will enter into no arrangements contrary
to our wishes.
179. That is interesting. In fact you are
saying, while we should reject the Matutes proposals, because
of the nature, extent and fundamental issue of sovereignty, that
you are not as such objecting to some continuing process of discussion
where sovereignty will obviously be part and parcel of those negotiations
or discussions?
(Mr Caruana) Of those discussions, not of those
negotiations. I think it is pointless (and it certainly would
do so contrary to the wishes of the people of Gibraltar and nor
would it be constructive) if the British Government were to enter
into negotiations with Spain on sovereignty given that it has
committed not to accept any arrangement contrary to the wishes
of the people. We have always understood in my Government that
you cannot sensibly expect to engage Madrid in a process of dialogue
in which they are not free even to raise the matter that is most
of interest to them, and that is sovereignty. Therefore, we have
always understood that in a process of dialogue involving Madrid
they have to be free to raise the question of sovereignty. Indeed,
there is no harm in them raising the question of sovereignty so
long as Gibraltar has the assurance that nothing can happen in
relation to sovereignty unless the people of Gibraltar, not even
the Government of Gibraltar, the Government and the people
of Gibraltar agree to it. With that safety net there is no harm
in the Spaniards raising the issue of sovereignty so long as they
do not then go off and let all hell break out loose simply because,
they having raised sovereignty and expressed their point of view,
we (and hopefully the British Government also) in reply express
our view. That is what a discussion on sovereignty would be.
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