Examination of Witnesses (Questions 180
- 199)
TUESDAY 20 APRIL 1999
THE HON
PETER CARUANA,
QC, MR
ERNEST MONTADO
and MR ALBERT
POGGIO, MBE
Mr Wilshire
180. Chairman, I have learned to listen
very carefully to the words that lawyers choose, and I note you
use the word "raise" in respect of the Spaniards' right
to talk about sovereignty. Would you not accept, if the British
Government were to engage in discussion arising from the Spaniards
doing what they are free to do, you enter into a situation where
if there is discussion on sovereignty it somehow implies that
both parties are prepared to consider it? Is that not then a fairly
short step for the British Government to say, "We will discuss
it and, if only the people of Gibraltar would be reasonable, we
can arrive at a settlement"?
(Mr Caruana) Yes, we obviously would much prefer
that the United Kingdom did not discuss the question of sovereignty
with Spain; but of course we do not have the power to prevent
them from doing so. The British Government has a solemn commitment
to the people of Gibraltar never to enter into arrangements in
relation to sovereignty contrary to our wishes. We believe that
that is a reliable assurance which no government would wish to
renege on, and I hope that no parliament would allow a government
to renege on. We would be much more comfortable if relations between
Spain, Gibraltar and the United Kingdom could be taken forward
without the need to discuss sovereignty. There is no mileage in
a sovereignty discussion that involves any degree of transfer
of sovereignty to Spain, because the people of Gibraltar and the
Government of Gibraltar are implacably opposed to it. It would
be in those parameters that the question of sovereignty could
be raised by Spain; as indeed they have done since 1984 when the
Brussels Process first started.
181. We have moved some way from that position.
In your submission to us you refer to the "Spanish dimension",
and ask the question, "What does it mean?"; and I suspect
nobody here could help you on what it means. In response to an
earlier question you made it quite clear that there would be no
change unless it was supported by the people of Gibraltar. I,
and at least from your evidence, from what I saw for myself, am
beginning to get the impression that we now have a situation where
there will not be any change either unless it is agreed to by
the Spanish Government?
(Mr Caruana) Indeed. That is a change to what?
To our constitution.
182. Am I right in sensing that there is
now something of a Spanish veto in any discussion about your future?
(Mr Caruana) Absolutely so. That is what I mentioned
in my memorandum and what I am constantly raising in my discussions
with the British Government. This of course does not address the
question of sovereignty. There is no doubt, for example, on matters
of constitutional reform the Foreign Office, and other parts of
the British Government, are constantly making reference to this
phrase "the Spanish dimension"; which means, as far
as I can tell, that they will not agree to any alteration in Gibraltar's
constitutional status unless the Spaniards agree, for fear of
Spain's reaction. That position is not acceptable to the Government
of Gibraltar; and I believe it is not acceptable or consistent
with the aspirations of the people of Gibraltar either.
183. Why do you not test the Matutes proposals
in a referendum?
(Mr Caruana) We could do that tomorrow certainly.
184. Will you consider doing so?
(Mr Caruana) Certainly I would consider doing
so. It would not be a challenge. If we did so they would be rejected,
as near as you could mathematically get, by 100 per cent. in electoral
terms, I suspect. It is just testing public opinion where public
opinion is already known. If the Houses of Parliament, the Commons,
this Committee, if the House thought that expressing it in such
democratically unequivocal terms were to add anything to the British
Government's management of the issue certainly we would hold a
referendum. Indeed, as part of the Spaniards agreeing to park
the question of sovereignty and leaving the question of sovereignty
to one side, as indeed the Spanish Opposition Party is now openly
advocating, the Government of Gibraltar could easily agree to
hold regular referenda to test public Gibraltarian opinion on
sovereignty-related issues.
185. As an Opposition member of this Committee
and an Opposition Member of the House of Commons I cannot speak
for anybody other than myself, but I would commend that thought
to you. Can I also ask you whether you would consider tesing something
else. You say in your memorandum about the question of the interpretation
of the Treaty of Utrecht. Why do you not as a government seek
international judgment on the interpretation?
(Mr Caruana) We have considered that. We understand
the position to be that, because we are not a party to the Treaty,
we would not have locus standi to obtain its interpretation
in an international court of law. Certainly we would be very content
for the extent to which the Treaty of Utrecht curtails our right
to self-determination, as alleged by the British Government, to
be tested. We believe that that view is incorrect. We would be
surprised if the only clause of the Treaty of Utrecht that had
not been challenged militarily, politically and in every other
sense through history were now going to be that part of the Treaty
that is said to curtail a right to self-determination. In any
event, it is worth having that tested for two reasons: a) because
we might be right; and b) because we might be wrong. If we are
right I think we are entitled to have our affairs conducted on
that basis. If we are wrong I think the people of Gibraltar ought
to know what their position is in international law so that we
do not adopt positions which are consistent with it.
186. I would personally agree with that.
Can we move on again to where you see your constitutional future.
If I read you correctly, you wish to be decolonised, and you wish
to have some new status for the 21st century. is that an interpretation
of your wish?
(Mr Caruana) Yes. In the brevity with which you
do it, it is as accurate as it can be. We would like to modernise
our constitutional relationship with the United Kingdom so that
we preserve British sovereignty; obviously we preserve the constitutional
link with the United Kingdom; but that constitutional link should
be such that Spain could not trot around the globe pointing to
the fact that we are the last remaining colony in Europe to attract
international political support for its position. When you raise
with Spain the apparent contradiction of Ceuta and Melilla in
North Africa, the first thing that any Spanish diplomat worth
his salt will tell you is that that is different because they
are not colonies; and this crosses the Rubicon, this crosses the
threshold of what apparently is politically acceptable to Spain
and what is not politically acceptable to Spain. Therefore, if
Gibraltar ceased to be a colony then that argument would no longer
be available to Spain. Ceasing to be a colony means decolonisation;
which does not mean breaking the link with Britain, and the United
Nations fully recognises that; it means you can decolonise by
adopting any status which is acceptable in an act of self-determination,
namely referendum, to the people of the territory. Therefore,
a modernised constitution, free of its more historically colonial
aspects, is capable of amounting to self-determination when and
if accepted by the people of Gibraltar in a referendum, and that
would leave us in a constitutional process.
187. When are you going to put your formal
proposals to the British Government?
(Mr Caruana) We have had discussions with the
United Kingdom Government; we have put up detailed ideas to them.
It is true that they have not yet been put up to London with a
cover sheet saying, "These are proposals, what are your answers?";
but our ideas are being submitted to the Foreign Office in great
detail. At the next sitting of the House of Assembly, I am bringing
forward a motion to create a select committee of the House to
arrive at what we would prefer to be; cross-party consensus proposals
which Gibraltar can then formally put up to London as Gibraltar's
proposals.
188. Would you consider testing those proposals
before you submitted them in a referendum?
(Mr Caruana) I think it would be an unconventional
way of going about it. There is no point in testing public opinion
about them until we know that they are available; otherwise we
are just flying kites and setting hares on a run. To get Gibraltar
geared up to expressing a view on proposals before we know that
they are available would be like conducting a referendum on whether
the Maastricht Treaty is acceptable to you before the terms of
the Maastricht Treaty had been negotiated.
Dr Godman
189. Following up David Wilshire's question
considering the possibility of putting your proposals to the people
of Gibraltar by way of a referendum, I need hardly remind you
that the United Kingdom is undergoing a profound constitutional
change at this very moment. Those proposals, and the proposals
concerning that reform, were in fact put to the people of Scotland,
put to the people of Northern Ireland and Wales. Might I point
out to you that the results of the referendum certainly helped
to focus the minds of legislators. Once you have drawn up your
proposals, would it not make good political sense to assess the
feelings of the Gibraltarians?
(Mr Caruana) I thought from the first part of
your question you might be under the impression that it was not
the policy of the Government of Gibraltar to conduct a referendum;
indeed it is the policy of the Government of Gibraltar to submit
any proposal that has any bearing on Gibraltar's status or constitution
to a referendum. That is not just often stated policy but is enshrined
in our last election manifesto. The issue, as I understand it
from Mr Wilshire, was whether we should have that referendum before
the proposals are formulated, in other words before the process
of negotiation of the British Government's stance about them,
or after the process of negotiation of the British Government.
I suppose this is one of the issues the select committee of our
House that considers this matter may wish to express a view on;
but, until Mr Wilshire asked the question, I had not contemplated
the possibility of holding a referendum before even approaching
London, even before tabling proposals to London.
190. If your proposals were tabled to London
on the basis, amongst other things, of the results of a referendum,
would not those proposals be immensely strengthened if you were
to obtain the kind of result you suggested earlier you would obtain
in a referendum?
(Mr Caruana) Yes, indeed. The unanimous support
of the parliament of a people is a pretty powerful electoral democratic
voice. I am not sure the unanimous support of every elected Member
of the House of Assembly adds very much to the sum number of votes
in a referendum as far as the British Government is concerned.
Unanimity in the House signals widespread support in political
support in Gibraltar; knowing that in addition it was supported
by 14,000 individuals may cut no more ice with the British Government
than knowing it has the full support of the Members of the House.
I am certainly interested in the suggestion that has been put
and I will certainly table it for discussion early on in the meeting.
Mr Wilshire
191. As a lawyer I am sure you would like
to follow precedent because you will practise common law. The
precedent is now set that in Scotland and Wales the referendums
took place before the details were thrashed out so you would actually
be following British precedent.
(Mr Caruana) I am not certain that one case constitutes
a precedent.
Mr Mackinlay
192. The word "integration" is
rather like "PR", it means different things to different
people, and probably causes some anxiety to some people. I know
one of my colleagues was particularly alarmed by integration.
Can I just explore this scenario with you: you referred, to Mr
Wilshire, the idea of dropping the term "colony" because
of what it signals; and indeed how, if you could then have parity
of treatment with the Spanish enclave in North Africa, it would
be very important. Is there also not a case for you having a representative
at Westminster, and that this could be done within the terms of
the Treaty of Utrecht, and indeed would be wholly consistent with
the Treaty of Utrecht if you were to have a seat at Westminster?
I do not use the word "integration"; "integration"
is where domestic issues or pavement politics are dealt with here;
but devolved government continues but there is representation
in this Parliament.
(Mr Caruana) Yes, obviously we would dearly like
to have representation in Parliament. The acid test of integration
is not whether you have a Member in Parliament but whether you
are included in the definition of the United Kingdom in the Act.
I think there is a United Kingdom Act or the Act of the Union.
That is what integration would mean. In other words, is Gibraltar
an integral part of the United Kingdom; or is it a territory for
whose external affairs the United Kingdom is responsible, which
is the case at the moment? We regret that the option for integration
was removed in the latest White Paper. In a sense, what we are
trying to achieve is the decolonisation of Gibraltar through the
modernisation of our constitutional relationships so that it would
then be a colony. It would be very welcome if to that could be
added either some degree of representation for Gibraltar at Westminster
and/or including Gibraltar in the definition of the United Kingdom.
The integration of Gibraltar in the United Kingdom would have
to be on terms. It could not be added to Kent county or something
like that. It would have to come with some element of devolution,
which may be less devolution than we enjoy at the moment.
Chairman: You have
not made representation to the Commission looking at the reforming
of the House of Lords?
Mr Mackinlay
193. Chairman, we are going off at a tangent.
You have dealt with what might be a legislative link. What about
government to government. When did the Chief Minister of Gibraltar
last have an invitation to meet with the Prime Minister of the
United Kingdom, as distinct from a handshake at a conference—a
substantive meeting?
(Mr Caruana) I understand that a meeting took
place in 1982 with the previous Chief Minister, Sir Joshua Hassan,
and the then Prime Minister, Lady Thatcher, in relation to the
proposal then on the cards to close the naval dockyard. My immediate
predecessor did not meet and I have not met.
194. When did the Chief Minister last have
an invitation to have a meeting with the Foreign Secretary of
the United Kingdom, as distinct from a handshake at a conference,
approximately?
(Mr Caruana) I think I have met with Robin Cook
two, if not three, times and on one occasion he invited me to
a dinner at his residence in Carlton Gardens. I do not recall
whether those meetings arose from his invitation or from my indication
I would like to see him. I do not know if that was the essence
of the question. There have been two meetings; I cannot tell you
whether they arose because he said, "I invite you to see
me", or because I asked to see him; I suspect it was a combination
of two.
Mr Mackinlay: The
Spanish Summit with the Spanish Prime Minister two weekends ago—were
you formally invited?
Chairman: We have
covered that question before you arrived. I think you are on a
slightly different area.
Mr Mackinlay
195. I apologise for being late—it
is quicker getting from Gibraltar to London than from Tilbury
to London! Were you given the opportunity formally of making a
submission to the Prime Minister prior to his meeting in Spain?
(Mr Caruana) Certainly not in person. The Governor
was in London for other business, when I discovered the opportunity
was going to be taken for the Governor to see the Prime Minister
I took the opportunity to support whatever the Governor might
tell the Prime Minister with a letter that I wrote to him as well
in the run-up to his summit. Obviously I would very much have
welcomed the opportunity to have seen the Prime Minister myself
but it did not happen.
196. Would you like to be in a position,
either as a government or legislator or both, to be able to petition
the House of Commons at the Bar of the House of Commons, which
is an idea that has been canvassed?
(Mr Caruana) Absolutely so. I think it is no secret,
I have told you myself before on many occasions, and I am sure
everybody you speak to in Gibraltar has told you on many occasions,
Gibraltar regards this House, the House of Commons in particular,
but Parliament in general, as being the Maginot line; an essential
line in our defences and, therefore, any degree and any nature
of access is vital to us—meetings such as this, parliamentary
visits to Gibraltar, lobbying efforts here; and the ability to
be able to petition the House directly and in person would be
an extremely powerful lobbying and plaintiff tool for us. I do
not know if the procedure exists, but if it does exist we would
dearly like to possess it.
Dr Godman
197. Do you have any information concerning
substantive meetings which took place between the Chief Minister
and Mr Douglas Hurd, the then Foreign Secretary in a previous
Tory administration?
(Mr Caruana) I fear, Dr Godman, that your question
is too cryptic for me. Do I have information about any meeting
between my predecessor and the previous Foreign Secretary, Mr
Hurd. I obviously know that several meetings took place between
them. From the scant information you have given me in your question
I cannot know what particular thing it is you are trying to focus
my mind on. Is this something to do with Spain?
198. I presume that you are given information
concerning meetings that have taken place between your predecessors
and British Foreign Secretaries?
(Mr Caruana) The rules that appertain in Gibraltar
in terms of access to the papers of previous governments are the
same as appertain here, and that is as I understand them, much
to my frustration (and here is the man responsible for policing
that rule in Gibraltar, by the way): I do not have access to the
papers of my predecessors except with their consent. Indeed, Sir
Joshua Hassan did give me such consent in respect to his files
on the question of sovereignty. I have had access to many of Sir
Joshua Hassan's files at his specific invitation. I am not aware,
indeed I am almost certain that I have not seen, from any Government
of Gibraltar, any paper about any meeting between the Foreign
Secretary and my predecessor in relation to matters of sovereignty.
Chairman: I would
like to move on to the European Union dimension.
Mr Rowlands
199. If there has been a pattern of British
Government overseas territories relationship, it has been that
we have tended over the period of time to pursue an increasingly
progressive degree of autonomy to our overseas territory, as opposed
to the outre mer French-style system. I was very interested
in your observation because I think there is that balance to be
struck here. If one goes for representation here, and that there
is a tendency for less autonomous power to be within the hands
of the government, in this case of Gibraltar, you have said you
would be prepared in some ways to stop a bit of your autonomous
power for representation here. Is that reasonable?
(Mr Caruana) Yes, I think it is inevitable. I
think recent developments in the United Kingdom, to which allusion
has been made, Scotland and Wales, now create the sort of devolution
structure which would make it possible for Gibraltar to become
part of the United Kingdom with some degree or other of devolution.
It would possibly have been more difficult when no-one else in
the United Kingdom had devolution for Gibraltar to be in the United
Kingdom with an enormous amount of self-government. The fact that
the United Kingdom itself has now moved in that direction, coupled
with the fact that we are all collectively moving in that direction
to the extent that there has been a loss of central power to the
European Union institutions, makes it easier for Gibraltar to
be accommodated as part of the United Kingdom with much more self-government
than Brighton might have; but that might mean less total autonomy
than we have now; it might indeed mean that.
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