Examination of Witnesses (Questions 200
- 219)
TUESDAY 20 APRIL 1999
THE HON
PETER CARUANA,
QC, MR
ERNEST MONTADO
and MR ALBERT
POGGIO, MBE
200. My reading of the Wales and Scotland
Act is that there would be areas of competence as you now have,
but if you followed the devolution model we are following there
would be powers repatriated to the United Kingdom—particularly
in the whole area of the European Union legislation. Would you
be willing to look at that change, an alternative in the balance
of constitutional competence?
(Mr Caruana) Absolutely so. I have spoken of my
regret that the option appears not to be available; because I
believe that that option—in other words, integration into
the United Kingdom on such terms as might be available (and by
"terms" I mean precisely the sort of things Mr Rowlands
is now asking)—ought to be on any referendum paper, put
to the people of Gibraltar: do you prefer constitutional modernisation,
or do you prefer this model?
201. We know from the exchanges, if you
read paragraph 77 in the cross-examination of Ms Quin, that such
an integration policy is perfectly within the terms of the Treaty
of Utrecht?
(Mr Caruana) Indeed.
202. As indeed, as I understand it, are
most of the suggestions you are putting about the changes in your
constitution?
(Mr Caruana) We have carefully drafted those ideas
for change so that they should be viable. There is no point us
drawing up a wish list. The question is: does it have to be viable
in terms of the British definition of sovereignty; or does it
have to be viable under the Spanish view that no constitutional
change is to their liking? Bearing in mind that Spain objects
to our existing constitution, all those manifestations of the
problems within the European Union—the competent authority
issues, the non-recognition issues—are manifestations of
the fact that Spain objects to the fact that back in 1969 the
United Kingdom gave us even the constitution we now have. You
can imagine what her views would be of any progression of that
constitution.
203. If you look at paragraph 90 in relation
to Ms Quin's evidence, we understand that the kind of proposals
you have been putting forward are not breaches of the Treaty of
Utrecht. We do not have to go and have international opinion of
these matters, they are all within the right side of the Treaty
of Utrecht?
(Mr Caruana) They all are. Most of them, indeed
probably all of them, relate to internal matters of institutional
relationship between the Governor and the Government, the Gibraltar
Government. None of them address the question of Gibraltar's sovereignty.
204. They leave the Governor in place, because
the biggest single manifestation to any outsider of colonialism
is the concept of a Governor?
(Mr Caruana) It depends what you call him of course.
This is why we suggested that he should not be called Governor
but a Lieutenant Governor or, indeed, a Governor General. There
are Governor Generals in independent Commonwealth countries, and
there are Lieutenant Governors in places like Jersey, Guernsey
and the Isle of Man that are not colonies. This nomenclature is
important. Governor Simpliciter is a colonial label, certainly.
Chairman
205. Would you think the Lieutenant Governor
or Governor should come from the citizens of Gibraltar?
(Mr Caruana) That would be a very enlightened
approach. Certainly our constitutional ideas are predicated on
the fact that we recognise, whilst we have a relationship of sovereignty
and political dependency on the United Kingdom, that that gives
the United Kingdom rights as well as obligations; and that the
United Kingdom needs to have a mechanism through which those rights
of the United Kingdom (which need not be colonial in nature or
mechanism) can be protected. There must always be a representative
of the Crown in Gibraltar. Indeed, we would not want there not
to be a representative of the Crown in Gibraltar. To the extent
that the Governor (albeit called something else) is the representative
of Her Majesty The Queen in Gibraltar, you would have to take
him away with us kicking and screaming. It is simply a question
of the constitutional powers and functions that that office has
or does not have in relation to day-to-day life in Gibraltar.
Mr Rowlands
206. That leads us into the European Union,
because many of the problems and issues of Gibraltar's identity
and definition have been created in the context of the European
Union. I do not think we should go over the nitty-gritty of all
the disputes; you have given us a very detailed and extensive
brief on that and, you may have seen, we have also had quite a
good go at Ms Quin about them. I think we have fairly accurately
conveyed the feelings and wishes on the issue. I would like to
home in on one specific issue and this is the Schengen issue.
Do you agree that this is going to be the next test of the balance
of interest we talked of earlier on between United Kingdom interests
in the European Union and Gibraltar's interests in the European
Union? In that context, could I draw attention to Appendix 9 of
your memorandum and the two letters published in that from Mr
Montado to Mr Steve Williams. We have not got his replies to them
because they are not within your property; they are the property
of the FCO. We can read from them that this exchange turned out
to be less than satisfactory. Could I ask you where it now stands.
In your second letter on 23 February you say, "I am a little
concerned that you should have simply taken note of Gibraltar's
wish to participate in all parts of Schengen in which the UK takes
part". That implies that you did not get the sort of commitment
you were trying to receive from the first letter. We are at some
disadvantage that we have not got the reply because Mr Williams'
part of the correspondence is missing. I assume you did not get
in reply to your initial inquiry a satisfactory response and your
second letter is a reply to that. Could you flesh this out, please?
(Mr Caruana) You are right; your reading between
the lines is entirely correct. The reply was not satisfactory
in the sense that it said something like, and please do not hold
me to the exact words because I am drawing from memory, "Well,
we'll have to see how the situation pans out as the United Kingdom
decides what parts of Schengen it wishes to participate in, and
we get into the political thick of it in Europe". Therefore,
having said to the United Kingdom that we wished to participate
in all parts of Schengen that the United Kingdom participates
in, we are concerned by any formula of words emanating from the
Foreign Office. I am now quoting from Mr Williams' letter of 17
February
207. You have authority to do that, do you?
(Mr Caruana) I think there is a difference in
quoting from the letter and publishing the letter. I do not think
he would object to my reading out just one short sentence. "We
have noted Gibraltar's wish to participate in all parts of Schengen
in which the UK takes parts. We will want to continue to work
closely with you on this", which is less than cast in stone
in terms of a result. Indeed, our concerns in that respect are
born out by the evidence given to you by Ms Quin at paragraph
125 of her transcript, which I think reflects precisely the position
that concerns Gibraltar, and precisely the possibility that I
invited you, when I last appeared before you, to remain vigilant
on our behalf. In other words, the United Kingdom, having agreed
to a position where Spain in practice has a veto on Schengen joining
by the United Kingdom, the United Kingdom says, "I am now
looking at the bits of Schengen that the United Kingdom is interested
in joining. They are talking to us about that. What do you think,
Gibraltar, these are the bits we want to join, how about you?"
We are saying, "Thank you for the consultation. We are of
course carefully reading all the papers, but we want to take part
in everything that you take part in, because to be excluded from
anything is tantamount to marginalisation of Gibraltar".
In that context, somebody in this Committee asked the question—
Chairman
208. It was Mr Rowlands.
(Mr Caruana) Yes, it was Mr Rowlands. "Finally,
if the Home Secretary comes forward with proposals covered by
the existing Schengen and therefore covered by veto and we find
the Spanish Government saying, `You can join minus Gibraltar',
are we going to be very clear and state very clearly that in these
proposals we come with Gibraltar? [Answer] Obviously [and I am
not sure it is obvious at all] if that happens the Home Secretary
will need to look at the areas which are being referred to and
look at them in order to decide whether it is so important to
the United Kingdom that he would want to recommend us to be part
of it anyway or whether he feels that if there is some attempt
to exclude Gibraltar that is simply unacceptable ...." This
raises precisely the scenario that we fear; in other words, another
á la carte approach. United Kingdom decides that
it wants to join something and if ministers have decided that
they want to join something presumably it is because it is important
to the United Kingdom, I cannot see the Cabinet making a decision
to subscribe to some part of Schengen if it is not important or
desirable in the United Kingdom's national interest to do so,
therefore this answer suggests that what is going to happen there,
in respect of Schengen, some of which may by then have been transferred
to the First Pillar, post the ratification of Amsterdam, and we
might find ourselves contrary to being included in everything,
as we have said we want to be included, we may find ourselves
on the receiving end of some judgment here, in the British Government,
that says: "Well, it is so important to the United Kingdom
that we will go in and leave you out".
209. That is your concern.
(Mr Caruana) That was precisely the scenario that
we feared when we lamented the giving away of the veto to Spain
on this matter.
Mr Rowlands
210. Putting it simply, although we can
go over the past failures, what you perceive to be the past failures
of the British Government in handling your relationship with the
European Union, shall we agree that the litmus test of the British
Government's strength of support in this issue will be Schengen
or shall I say the next one is going to be Schengen.
(Mr Caruana) It is the ultimate litmus test.
211. Yes.
(Mr Caruana) Schengen coupled with any measures
that might be developed either under the old external frontiers
convention or some new external frontiers convention, post Amsterdam.
Those two will be the litmus test of the United Kingdom's willingness
to uphold Gibraltar's right to participate on Treaty terms in
the European Community and not make our benefits an a la carte
menu when our burdens are not.
212. As a matter of curiosity, did you have
a reply Mr Montado to the letter of 25 February?
(Mr Montado) I do not think so, no.
(Mr Caruana) There are constant comings and goings.
For example this afternoon we have a meeting with Foreign Office
officials in the European Union.
213. Meetings may have replaced the reply?
(Mr Caruana) Specifically on Schengen consultation
but of course we draw a careful distinction, Mr Rowlands, between
being consulted in the process as it goes along, which is great
and which is welcome and which ought to happen, but that is very
different from the final result which is that we do not want it
to happen even if we have been consulted along the line because
consultation does not mean that we agree.
214. Finally from me, may I just ask you,
Miss Quin told us that she had lodged complaints with the European
Commission about aspects of the recent events. What has happened?
Have you had any direct dealings with the Commission? Obviously
they go through the United Kingdom Government but have there been
any follow ups, has there been any perusal of the issue? Are we
prosecuting our arguments with the European Commission as forcefully
as we should?
(Mr Caruana) I cannot say with what vigour the
British Government is prosecuting its argument with the Commission.
Certainly the result has not so far been any action by the Commission
which appears not to have adopted a position on the matter. What
I can tell you, Mr Rowlands, as you know we have been operating
a Complaints Office down at the border and in excess of 3,000
complaints have now reached the Commission?
(Mr Montado) 3001.
(Mr Caruana) 3001 complaints have now reached
the Commission from citizens of all nationalities, of all nationalities
including Spaniards and British and many other nationalities.
215. Good.
(Mr Caruana) That has attracted an element of
response. I have here a letter from DGXV of the European Commission,
the head of that Unit. It is addressed to the Frontiers Complaints
Office and it reads: "Thank you very much for the letters
of complaint—see list in the annex—which you have
forwarded to the Commission regarding the difficulties the complaints
have experienced on entry and departure of the border crossing
point between Gibraltar and Spain during the months February and
March 1999. In effect the Commission has received numerous complaints
concerning these issues and intends to contact the Spanish authorities
about the matter."
Chairman
216. What date is that letter?
(Mr Caruana) 12 April 1999. I will happily leave
a copy with the Committee.[1]
"At present we cannot prejudge the outcome of these contacts.
I would be grateful if you would kindly pass this information
to the complainants." So the position appears to be that
the Commission is saying that it is going to take the matter up.
Mr Rowlands
217. When was the first complaint to the
Commission? What was the date of the first complaint?
(Mr Caruana) I think it would have been early
February, Mr Rowlands, certainly because they started to go up
as they came through.
Mr Rowlands: Thank
you very much.
Chairman
218. Chief Minister, I would like to move
on to the airport and here is an opportunity for building up relations
with the hinterland, here is a possibility, symbolic and otherwise,
for co-operation, a confidence building measure. Now the agreement
in 1987 was supported by the then Chief Minister, Sir Joshua Hassan,
and that was founded in the 1988 election in Gibraltar. Can you
see the prospect of the citizens of Gibraltar accepting a deal
under which those arriving at the airport step out one side into
Spain and the other side in Gibraltar?
(Mr Caruana) Yes. Well, before I answer that question
can I just take you back with your indulgence, Chairman, just
a little bit further?
219. Yes.
(Mr Caruana) I think it is worth recording, Chairman,
that as far as Gibraltar is concerned there is no shortage of
confidence building. For example, if we talk about economic type
confidence building measures, the fact of the matter is Gibraltar
opens its doors fully to Spain economically, not just in terms
of unrestricted access to Spanish labour but indeed unrestricted
access of Spanish based businesses which dominate many of the
sectors in our market. There is no shortage of economic co-operation
as far as Gibraltar is concerned.
1 See Suplementary Memorandum, p. 78. Back
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