APPENDIX 8
Memorandum submitted by Joint Foreign
Affairs Committee, Gibraltar Socialist Labour Party and Liberal
Party
DETAILED REPLY ON POINT 12
In the reply provided by the Foreign Office item
12 deals with the specific issue of Schengen. The Foreign Office
makes the following points.
(1) As regards existing Schengen measures
and participation by the United Kingdom in some of these, notice
of intent of which has already been given by UK, a veto exists
on the part of Spain. This is the so-called Schengen veto which
the Gibraltar government has drawn attention to in the past and
which in June 1997 was stated to be academic because it was unlikely
to happen in the foreseeable future. The response of the Foreign
Office now, clearly demonstrates that the Declaration made at
the time has no legal force as was stated by Spain and that they
can only hope that they will be able to use moral persuasion should
Spain seek to veto any existing measure in its application to
the United Kingdom, unless Gibraltar is excluded.
In November 1997 the Committee was told that
an assurance was being sought by the United Kingdom that in such
an event the UK would not proceed without Gibraltar. The absence
in the reply of confirmation that such an assurance has been given
and the fact that the Foreign Office will seek to include Gibraltar
only if it thinks it is appropriate, gives the impression that
if it comes to the crunch Gibraltar's position is likely to be
abandoned.
(2) Since June 1997 the opposition in Gibraltar
has maintained that over and above the veto on existing Schengen
measures, Spain would enjoy a veto on Gibraltar's participation
in new measures, separately from the Schengen aquis, to be introduced
under the new Title created by the Amsterdam Treaty setting up
an area of "Freedom, Security and Justice". In June
1997 the Protocol dealing with Britain's participation in this
new chapter was known as Protocol Y. The Gibraltar government
has told the Committee that it has been assured that the United
Kingdom could not be prevented from participating in matters agreed
under this new chapter if it gave prior notice of its intention
to do so and participated in the negotiations.
The reply on this point by the Foreign Office
states that the Committee had been misled when they were told
that these decisions could be taken by Qualified Majority Voting
(implying no Spanish veto) and that in fact they required unanimity
(implying the existence of a Spanish veto). These new measures
now under Title IV of the Treaty are currently under discussion
and will be subject to a Spanish veto during the next five years.
The Foreign Office States:
"Other Member States do have the right to
adopt a measure under the new Title IV without the participation
of the UK, even where the UK has notified its intention to participate,
if, after a reasonable period of time, such a measure cannot be
adopted with the UK taking part."
Since this statement is being made in reply
to the points made by the Committee in respect of Gibraltar, it
would appear to confirm that it is possible under the terms specified
above for the rest of the Member States to proceed without UK
if Spain blocks UK participation because it wishes to see Gibraltar
excluded, notwithstanding the fact that the UK participates in
the negotiations from the beginning. It is precisely this point
which has been categorically denied again and again since June
1997. As was pointed out at that time, the research department
of the House of Commons Library in a report analysing the text
of the final version of the Amsterdam Treaty stated that Protocol
Y governed the relationship of the UK to the new Title on Free
Movement of Persons and that Article 3 of the Protocol allowed
UK to choose to opt in to measures on a selective basis. If after
a reasonable period of time agreement could not be reached with
the UK taking part, then the remainder could proceed leaving UK
out.
It seems that the reply of the Foreign Office
confirms that this is indeed the position that has materialised.
The Justice and Home Affairs Council meeting
in Luxembourg on Friday 29 October 1999 records the fact that
the United Kingdom has already notified their wish to participate
in the adoption and application of Regulations due to be made
under the new Chapter, and that finalisation is currently held
up over the territorial scope of draft Regulations. Whilst Gibraltar
is not specifically mentioned, it seems highly likely that the
issue of territorial scope is the result of Spain objecting to
Gibraltar's inclusion in such Regulations. In the event of Regulations
being proceeded with, and the territorial scope being limited
in the case of the United Kingdom to the British Isles, the position
will be that UK will have exercised its right of opting into a
new measure leaving Gibraltar out which until now it has maintained
would be a breach of Community Law and would be impossible under
the terms of the Amsterdam Treaty.
Before the position becomes irretrievable, we
would urge the Committee to go back and get clarification on this
specific point and a categorical assurance that it will not be
allowed to happen.
The Gibraltar Socialist Labour Party and the
Liberal Party are grateful for the opportunity to make these additional
submissions to the House of Commons Foreign Affairs Committee,
and are at the disposal of the Committee to supply more details
if so required.
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