Examination of Witness (Questions 1-19)
WEDNESDAY 28 NOVEMBER 2001
THE HON
PETER CARUANA,
QC
Chairman: Order, order.
Andrew Mackinlay: I visited Gibraltar in September
2000 at the invitation of the Gilbraltar Government. It is in
the register and I draw that to the attention of the Committee.
I was hosted by them and according to the rules that should be
minuted.
Mr Chidgey: I also visited Gibraltar as a guest
of the Gibraltar Government.
Mr Hamilton: Similarly, I visited Gibraltar
as a guest of the Gibraltar Government in September of this year.
Chairman
1. Chief Minister, welcome. As you know, the
Committee has taken a very close interest in Gibraltar. We published
our report in June 1999 and because of recent developments consider
it vital to hear your views today. We have had the benefit of
this lengthy statement, your evidence to the Foreign Affairs Committee.
I can give you an undertaking that that evidence will be included
in the minutes of this meeting[2].
We have an hour or so, so it is important that you have as much
opportunity as possible to put over your views to the Committee.
May I begin by asking you to clear the ground in this way, to
give to the Committee where your Government stands on the various
options for development so that we know that as a platform for
the questions which will follow? What is the position of your
Government on those who seek full integration into the United
Kingdom?
(Mr Caruana) With your indulgence and
before I answer your question, I should just like to place on
the record that I had been led to believe that the format for
today's evidence was that I should be invited to address the Committee
for a period of up to 30 minutes and then that I would be questioned.
That appears not to be the intention of the Committee. I am very
anxious to address the Committee on what is going on at the moment
rather than on other issues, but of course I am in the Committee's
hands. The Committee has received that paper. It is supposed to
be notes of evidence I was going to give to you orally now. It
is entirely a matter for you to conduct the business of the Committee.
2. Indeed. I am confident, whatever misunderstandings
there may or may not have been, that with your usual skill you
can put over your current position in answer to questions. First,
if you would, what is the view of the Government in relation to
integration into the UK? I am going through the several options.
(Mr Caruana) The views of the Government
and the people of Gibraltar overwhelmingly are that the future
of Gibraltar can only be determined by the exercise by the people
of Gibraltar of their right to self-determination; that is to
say the people of Gibraltar, as all colonial peoples have done
before them in the world's history of decolonisation, in accordance
with their own wishes. There are, as Mr Chairman knows, four options
for decolonisation that the United Nations find acceptable. One
of them is integration with a colonial power or some other. If
the question of integration arose, then as far as we are concerned
the only version of that integration option which we are willing
to contemplate is integration with the United Kingdom. We should
certainly not be willing to consider any form of integration with
any other country including our neighbour, Spain.
3. Is that a realistic option in your judgement?
(Mr Caruana) It is a realistic option
if we are to be guided by the wishes of the people of Gibraltar.
If anyone aspires to deal with the future of Gibraltar, not as
an issue of self-determination by its people, but as the resolution
of a sovereignty dispute between the administering power, the
United Kingdom and the territorial claimant, Spain, and seeks
to impose that approach to life as opposed to the real free choice
of the people of Gibraltar, and I believe that is what is afoot
at the moment through the Foreign Office—
4. Do you see any constraint on that free will
of the people imposed by the Treaty of Utrecht, Article X?
(Mr Caruana) We believe that the Treaty
of Utrecht is in law incapable of overriding the Charter of the
United Nations. We think it is watertight international law that
where a bilateral or even a multilateral treaty is inconsistent
with the provisions of the Charter of the United Nations, the
Charter of the United Nations, which is primary and supreme international
law, prevails over any such other agreements. We say more than
that. We say we have eminent international constitutional legal
opinion to back up that deal and we go further than that and say
to both the Foreign Office and the Spanish Government, if you
think we are wrong on that let us test it in the International
Court of Justice. Let the International Court of Justice have
the question referred to it for an advisory opinion, whether the
Treaty of Utrecht is valid at all now to constrain the rights
to self-determination of the people of Gibraltar, which we are
certain it is not, but if it is, to what extent is it so. You
are entitled, I believe, to ask yourselves why neither the United
Kingdom Government, nor indeed the Government of the Kingdom of
Spain, is willing to pursue that course, when we, who are the
ones who have most to risk, are happy to do so. The answer is
that they know that we are right and it does not suit them politically
to test it.
5. What do you say about the status quo?
(Mr Caruana) What I am saying about the
status quo is that it is prosperous, stable and secure
and that if somebody says to me they need to do a deal with Spain
to ensure that my future is also stable, prosperous and secure,
what they are really doing is threatening that if I do not have
a deal with Spain, my current stable, prosperous and secure present
will not be allowed to endure into and prevail in the future.
The people of Gibraltar believe that those are threats.
6. You have stressed the stability, you have
stressed the prosperity. Do you see no disadvantages in the status
quo in respect of that prosperity and stability?
(Mr Caruana) Whatever might be the disadvantages
of opting to remain of exclusive British sovereignty and control,
the people of Gibraltar are more than happy to assume. We do not
wish to barter our sovereignty. We do not wish to barter our exclusive
British sovereignty. We do not wish to give Spain a share of that
sovereignty, a share in the control of Gibraltar, a role in the
conduct of the affairs of Gibraltar, in exchange for any quantity
of financial or economic inducements.
7. You are not even prepared to enter into discussions
with Spain with an open agenda.
(Mr Caruana) We are very happy to enter
into discussions with Spain on an open agenda. I have been advocating
precisely such discussions with Spain since I have been in office
for the last six years, but that discussion on an open agenda,
has first of all to be structured in a way that is reasonably
politically viable for all sides: Spain, but Gibraltar as well.
That means that the Foreign Office does not cave in to the Spanish
obsession with bilateralism. The issue at stake in the so-called
boycott by me, which is a gross distortion of my position in relation
to non-attendance at the talks, but that is what is being spun
in the press in this country, is not that I will not go to talks,
it is that I will not go to talks which are structured purely
bilaterally between London and Madrid. Why? With your indulgence,
it is important, as you offered, that you give me an opportunity
to explain to the Committee why that is so. It is not just whimsical.
The essence of the Spanish case over Gibraltar is that it is a
piece of Spanish territory, occupied by the United Kingdom in
which the people of Gibraltar have no political rights, certainly
not the right to have their wishes taken into account and absolutely
not the right to decide the future of Gibraltar in accordance
with the rights to self-determination. Instead they argue that
the decolonisation of Gibraltar must be brought about by the negotiation
between London and Madrid of a transfer of the sovereignty of
Gibraltar from the UK to Spain. The physical manifestation of
that political position is the Spanish obsession with the talks
being and being seen to be bilateral between London and Madrid,
to which I am invited—note the word. I am the leader of
the elected Government of Gibraltar, there is a process of dialogue
in which it is said the destiny of my country is at stake and
I am "invited", which is what you do to guests, to take
part in that process.
8. And you will not go unless you have a veto.
(Mr Caruana) We will not go unless it
is a valid, reasonable, viable process of dialogue, which means
that—
9. You have a veto.
(Mr Caruana) We can use emotional language
if we wish, but if nothing being agreed unless all the participants
in the talks agree is called a veto, then that is what London
and Madrid have at those talks. Why should they have it over the
future of my country and not me? I do not ask for a veto. What
I say is that if this is to be a political process of dialogue,
which is politically viable not just for Spain, but also for Gibraltar,
then it has to be a process of dialogue in which things emerge
by way of agreement, because they have been agreed to by all the
participants in the process and not by two of the participants
with the third being their to express his opinion and then fold
his arms to wait to see what the other two will do.
Mr Pope
10. Would you agree that self-determination
is a two-way process? The people of Gibraltar may decide that
they want full integration with the UK. If that is the case, we
surely have the right to say that we do not want that. We have
rights as well.
(Mr Caruana) The United Kingdom said
that to the people of Gibraltar back in 1976 when Mr Roy Hattersley
was the Foreign Office Minister and occupied the post Peter Hain
now occupies and Gibraltar has assumed for some time, since that
year, that the United Kingdom did not want us to integrate with
it. Regrettably you cannot marry somebody who seems determined
not to marry you. Therefore we are not asking for integration
with the United Kingdom. I do not understand why integration has
loomed so large so early in this meeting, but if the honourable
Members are interested in it, I am very happy to discuss it. We
are not seeking integration with the United Kingdom, not because
many people in Gibraltar would not like it, but because it has
been made perfectly clear to us it is not an option for the decolonisation
of Gibraltar that the British Government would contemplate.
11. So why should the UK continue with the status
quo? It is palpably not in our interest, it is damaging our
relations with a major EU ally, it is damaging our relations with
a NATO ally, why should we stick with what we have?
(Mr Caruana) Because the position of
the British Government articulated only ten days ago by the Minister
of State at the Foreign Office in answer to a Parliamentary Question
from David Crausby, is that the Government of the United Kingdom
does not believe that the Gibraltarian people's right to self-determination
is constrained, except to the extent that they cannot opt for
independence without the consent of Spain. That is the answer
that Mr Hain gave to the House of Commons in answer to a Parliamentary
Question just ten days ago. In other words, provided we do not
opt for independence, we have the right to self-determination.
That is what the man said and indeed that is what successive British
Governments have said since 1969. However, of course what I cannot
do is articulate for you a right to self-determination which is
conditioned by your view of what is in your own interests. It
is either that the future of Gibraltar is decided in accordance
with what you believe to be in the United Kingdom's interests
regardless of our wishes, or that the future of Gibraltar, as
Mr Hain said in the House of Commons, is decided in accordance
with the rights of self-determination of the people of Gibraltar
bar independence. You cannot mix them both. To the extent that
you do, you are curtailing our right to self-determination beyond
the bar to independence.
12. Is it not the case that even if you could
persuade the UK Government that Article X of the Treaty of Utrecht
was not watertight in international law, your chances of doing
this with the Spanish Government are nil?
(Mr Caruana) I do not want to persuade
the Spanish Government. I want to persuade the International Court
of Justice. After all, why should the United Kingdom and Spain
get away with continuing to deny me the right to self-determination
on what might be—and we are assured is—a wholly incorrect,
misconceived, legal pretext, namely that Spain has some sort of
residual right. The preponderance of legal opinion, indeed I have
never seen a legal opinion to the contrary is that the Treaty
of Utrecht and the so-called right of first refusal clause in
it, is juridically incapable of denying the people of Gibraltar
any aspect of their right to self-determination. We do not want
to waste anybody's time if we are wrong, but nor do we want to
be taken for a ride if we are right. Therefore we suggest: let
the International Court of Justice adjudicate on that point and
the only two parties who refuse are the ones who advocate that
I do not have the right to self-determination.
Andrew Mackinlay
13. Every time Gibraltar comes up before this
Foreign Affairs Select Committee the Foreign Office think that
there are things rotten in Gibraltar—my words. Certainly
they start flagging up "smuggling" through journalists,
that the Gibraltar Government are tardy on EU directives, etcetera.
I want to give you the opportunity of giving us an audit of where
we are at. I noticed that one of the Parliamentary Private Secretaries
to the Foreign Office actually referred to smuggling in a BBC
broadcast in the past few days. There is a question I particularly
want to ask on that. My understanding is that the police are a
matter for the Governor and the Governor is appointed by the Secretary
of State. Could you clarify the law and order issues, go on to
smuggling and bring us up to date on where you are at with the
EU directives?
(Mr Caruana) There is no smuggling taking
place in Gibraltar. I am scandalised that these remarks should
appear in the British press. It is only a year and a half since
this Committee published a report condemning the British Government
for not doing enough to dispel those untrue notions. Now that
the Foreign Office appears to have swallowed the Spanish approach
to Gibraltar hook line and sinker, now they are appearing in the
British press, no longer just in the Spanish press. I have to
say that I was distraught—distraught—to hear the Foreign
Secretary in Parliamentary Questions yesterday legitimise the
politically motivated slanderous Spanish slurs against Gibraltar
by himself appearing to lend legitimacy to them when he was asked
by somebody—it may not have been his own side, or it may
even have been Joyce Quin, who queried—whether the Spaniards
should not behave better and stop harassing the people of Gibraltar
if they wanted to get on. I think I am not misquoting the Foreign
Secretary—and if I am, I do apologise—that he said
Gibraltar has complaints against Spain, but Spain has some complaints
against Gibraltar, as has the EU, as has the OECD, and they are
for Gibraltar to answer. I am not aware of any complaints the
EU has against Gibraltar. I am not aware of any complaints that
the OECD has against Gibraltar. I and my Government very much
regret that the Foreign Secretary should have placed in the same
category the untrue Spanish, slanderous allegations against Gibraltar,
as Gibraltar's entirely legitimate complaints against Spain for
behaviour that British Ministers have queued up in Gibraltar to
see for themselves and then described as outrageous and unacceptable.
On the last part of the question, let us be clear that law and
order in Gibraltar is the responsibility of the Governor appointed
by the Foreign Office. If there were a failure to enforce the
laws of Gibraltar, which, let me tell you, Mr Chairman, members
of the Committee, there is not, but as we are in the realms of
speculation and slanderous allegation let us continue in that
vein, it is not happening, but if it were happening, it would
not be my constitutional responsibility. The allegedly non-compliant
finance centre, presumably meaning non-compliant in terms of regulation
and supervision, is the responsibility of a Financial Services
Commissioner whose head and members are appointed by the British
Foreign Secretary. I can tell this Committee that there are no
breaches by Gibraltar of its financial services legislation which
the British Government certifies, at least in the case of banking
and insurance, matches UK standards. If by non-compliance you
mean the odd directive here or the odd directive there that Gibraltar
has not yet got round to transposing, the answer is that we are
much more advanced in our rate of transposition than Spain and
half of the other countries in Europe. If Gibraltar is going to
be judged by the unique criteria of whether it is 100 per cent
up to date on transposition of directives, then let us be clear,
we are the only part of the European Community that is subjected
to such stringency of examination.
Sir Patrick Cormack
14. Let me make it quite plain that I am one
of those who is really proud of British sovereignty in Gibraltar.
You heard the exchanges in the House of Commons yesterday in which
some of us took part. You are clearly concerned—to put it
mildly. Would you tell this Committee what you believe the British
Government's current policy with regard to Gibraltar is? Perhaps
you would like to expand on that a little.
(Mr Caruana) Yes, indeed. On the basis
of almost contemporaneous speculation in the Spanish and the UK
press, a pretty unlikely prospect to happen spontaneously and
therefore leading one to the view that there is more than a small
element of inspiration of the press in both countries, but on
the basis of those speculative reports, it could be anything from
joint sovereignty to shared responsibility for Gibraltar internationally
or within the EU, to the establishment of joint Anglo-Spanish
cross-border committees which would give Spain some sort of role
in the conduct of our affairs. It has even been speculated that
the Spaniards might have some role, presence or freedom to use
the naval base in Gibraltar.
15. Have you asked the British Foreign Secretary?
(Mr Caruana) I have not done so yet,
because all this is against the backdrop where we are told—and
I suppose therefore we should believe—that there is no blueprint,
that there is no deal done and that officials are now going to
start working on coming up with ideas for co-operation. I suppose
to ask whether any of these things are true is to suggest that
answers which have been given in this House are not and I would
not wish to do that. However, I have also to say that there is
an aspect of the Foreign Secretary's answer in this respect that
caused us great concern. It is that there has been some debate;
the statements have been made with more or less clarity or more
or less ambiguity from time to time. Certainly when I have gone,
as I have done in the last few days, round almost every sector
of the British press being interviewed, I have been struck by
the extent to which everyone has the same question on their lips—journalists
are very well informed here—"Do you not have a guarantee
of a veto in a referendum?", they ask. A lot of issues arise
but specifically in relation to the question Sir Patrick asked,
the following question arises. When British Ministers articulate,
presumably to put us all at rest, that there is no need to worry
because any deal would have to go to a referendum, do they mean
all aspects of any deal, or do they mean only those aspects of
any deal that they might come to with Spain which may involve
a transfer of sovereignty, because of course there is an enormous
difference? Yesterday the Foreign Secretary said there would be
a referendum—I do not know whether he was choosing his words
carefully or whether it was loose language, which was not intended,
but it certainly needs to be clarified—
16. Why do you not seek to clarify it with him
direct?
(Mr Caruana) It was uttered only yesterday
and I am articulating it with you. Certainly we shall seek to
clarify it directly with him. He said that there would be a referendum
only in so far as there were transfers of sovereignty involved.
Then he spiced that concept, novel as it is, by the introduction
of the adjective "legal" in front of the noun "sovereignty".
There would be a referendum if there were a transfer of legal
sovereignty. You do not have to be a rocket scientist or even
a very clever member of the Foreign Office, to work out what that
is capable of meaning if they wanted it so to mean and that is
that they are free to do whatever agreements they want with Spain,
even transferring the trappings of sovereignty and control, so
long as they do not transfer legal sovereignty in a formal way
and if there is no transfer of sovereignty at all, then there
is no referendum. In other words, the process of dialogue I am
being asked to attend therefore would be—I should be very
happy if I were told that all aspects of a deal would go to a
referendum whether they involved sovereignty or not, but on the
basis of that answer, what I am being invited to do is to attend
a process of dialogue—structured in a way where deals would
be done, whether I am there or not, by the way, come the summer
and those parts of it which may impinge on sovereignty will go
to a referendum, those parts which do not impinge on sovereignty,
but may nevertheless be politically anathema in Gibraltar, will
not.
17. You speak with force and with clarity and
obviously you are the elected Chief Minister. How far do you speak
for all sections of political opinion within Gibraltar? Do you
believe that what you are saying to this Committee this afternoon
represents a consensus of the overwhelming majority of Gibraltarian
feeling?
(Mr Caruana) There is no proponent of
a contrary view who would not forfeit his deposit at the next
General Election. The Foreign Office knows this. The Foreign Office
knows that there is absolutely no prospect of any such deal passing
muster in a referendum by the people of Gibraltar and therefore
the question arises: what next? What happens after the inevitable
rejection, especially if the arrangement is hatched along these
lines and in this way? What happens next? That is the issue with
which we should all, I believe, be concerned, because this is
not a speculative process. I believe, if the speculation is correct,
if the kites which are being flown in the press are correct, that
there is no prospect of the people of Gibraltar accepting in a
referendum any deal that involves any manner of transfer of sovereignty
to Spain, legal or illegal, formal or informal; no prospect of
the people of Gibraltar accepting joint committees to give Spain
a role in the conduct of our affairs. This is not just the Gibraltar
Government's view. I am answering your question which was not
about the Gibraltar Government's view but rather what is the Gibraltar
Government's assessment of the views of the people of Gibraltar.
I believe the views I have just explained to you to be as near
to unanimous as numbers are capable of recording.
Mr Maples
18. I am interested in what you think the Spanish
psychology is in these negotiations. It has always seemed to me
that continuing effectively to blockade Gibraltar rather than
trying to seduce it was never likely to produce the result they
want. We know that started a very long time ago, back in the 1960s.
Why do you think Spain continues to pursue this very aggressive
approach? For instance, they have recently threatened to block
the Open Skies agreement and part of the EU anti-terrorism legislation
unless Gibraltar was excluded from it, they continue with the
border delays, the problems over telephones, yet it would seem,
I would have thought, to any reasonable outsider that the way
to persuade the population of Gibraltar that it would be better
off with Spain would be to adopt a totally different approach.
Why do you think they continue to pursue this negotiating style
or do you think they are trapped in it?
(Mr Caruana) I will tell you; I will
tell you. Because they believed that it would produce the results
that it appears to be about to produce. They feared that if they
introduced normality, what the Foreign Office has always called
confidence-building measures, into the relationship, we terribly
clever and devious Gibraltarians would pocket the economic and
social benefits of normality—not that we are asking for
favours, just the benefits of normality between two territories
of the European Union—and then we would make hay whilst
the sun shone, which would be a very long time, and they would
never get their evil way. Instead, they said, because they were
not willing to run that risk, the alternative was to make a nuisance
of themselves. Originally the nuisance was just to Gibraltar on
things which only affected me and my fellow citizens, then they
realised that did not have an effect on UK Ministers. Then they
looked at how they could turn up the pressure on the UK. The way
to turn up the pressure on the UK was to make a nuisance of themselves
in the European Union. They started vetoing this and vetoing that:
justice and home affairs, aviation, environmental measures, financial.
They started playing the Gibraltar veto threat at every crossroads
on every issue so that sooner or later the other 13 Member States
would come to both us and the UK and say "Come on chaps.
This is getting terribly tiresome for the rest of us. Can't you
sort this out?". Frankly, from where I now sit, the Foreign
Office is about to cave in to that approach to life.
19. It still does not get over the constitutional
veto in Gibraltar. The more that strategy works with the United
Kingdom Government, the less it is going to work with the people
of Gibraltar.
(Mr Caruana) Absolutely right. That is
why it is very important for us that we should be free from the
imposition of agreements against our will, precisely so that the
UK continues to act, not in accordance with what may be in its
interests this month or this year, but the right thing by the
commitment it has to the people of Gibraltar to allow us to decide
our own future, bar independence, and to look after our interests
within Europe. We believe that a grave disservice has been done
to Gibraltar if we are asked to put our British sovereignty on
the negotiating table, to put our exclusive British constitutional
relationship on the table, in exchange for buying off Spanish
pressure which has only built up because no-one has engaged Spain
in the past. How unfair can you get? We have been complaining
about telephones for five years. We have been complaining about
border queues for five years. No-one does anything to enforce
Spanish compliance with her EU obligations. When the pressure
has been allowed to build up sufficiently in the cooker, those
very same issues are then used as political leverage against us
to explain why we have to do a deal on sovereignty. It is a rather
too simplistic an approach to life.
2 See Evidence, pp 1-7. Back
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