Examination of Witness (Questions 20-39)
WEDNESDAY 28 NOVEMBER 2001
THE HON
PETER CARUANA,
QC
20. Very helpful. May I ask you one further
question about the Spanish approach to this because I am trying
to understand it more clearly? Spain draws a distinction between
Britain's relationship with Gibraltar and Spain's relationship
with Ceuta and Melilla. Could you say whether you think that distinction
is valid?
(Mr Caruana) I think it is a wholly duplicitous
and hypocritical distinction. What can I say? Here is the Kingdom
of Spain, which goes to the United Nations to argue that we are
not a real colonial people, or a real colony or a people with
the right to self-determination because we are an enclave in her
territory, when she is sitting on two enclaves in Morocco, 15
kilometres away. I open my windows in the morning and it is the
first place I see. When we say, "Hang on guys. What's the
difference here?", the answer is that they have been Spanish
for 500 years. We say we have only been British for 297 years,
so the difference between having the right to self-determination
and not having the right to self-determination appears to lie,
as far as Spanish political jurisprudence is concerned, between
the figure of 297 and 500. Apparently all that is now left to
decide is where exactly that figure lies, so that I can survive
for long enough to enure its benefit. Of course the Kingdom of
Morocco has the very same claim to sovereignty over those enclaves
as Spain has over Gibraltar. It is astonishing that no-one says
to Spain, "Look guys. These are just unacceptable double
standards. Either Gibraltar should be handed back to you, which
we think it should not, but if it should you cannot say, as Mr
Piqué said on only Friday of last week, that there is absolutely
no prospect of the Spanish Government even entertaining discussions
about sovereignty of Ceuta and Melilla with Spain". The people
of Gibraltar wish that the British Government in the very same
factual circumstances would take exactly the same line that Spain
feels free to take.
Mr Chidgey
21. For the record, you are going to give me
a very quick answer on two things before I move on to more substantial
things. Can I take it from what you have said a few minutes ago
that you do not think the preamble to the 1969 Gibraltar Constitution
is a sufficient guarantee for Gibraltar that any decision taken
on sovereignty bilaterally by Spain and Britain would be subject
to a referendum of the people of Gibraltar? Can I take it that
you do not feel that that is a sufficient guarantee?
(Mr Caruana) There has been some unfortunate
clouding of the issues, which I believe has now been cleared up
by both the Prime Minister and the Foreign Secretary, issues of
the British citizenship of the people. That was understood in
Gibraltar to perhaps be suggesting that it was possible to dispose
of the territory, nevertheless allow the people to retain their
British citizenship and that somehow that would be a compliance
with the preamble. The answer is that it would not be a compliance
with the preamble as it has been articulated by every British
Prime Minister and every British Foreign Secretary, including
the two incumbents, since the 1969 Constitution.
22. So you do feel that it is a guarantee then.
(Mr Caruana) I believe that it is a guarantee
on the transfer—I would have said until yesterday—of
sovereignty. Now I wonder whether I have to say legal sovereignty.
You might like to clarify that question with the next witness
to appear before you.
23. Read my mind.
(Mr Caruana) Certainly it is not enough
to protect us against equally unacceptable political deals which
might be done, which do not invoke the sovereignty veto, giving
Spain a role. The preamble gives us no protection there.
24. You have made that point very well. I have
a caveat to start with of course in that there are genuine interests
from Spain in Gibraltar and if you will accept that from me, may
I ask whether you could suggest to the Committee how you feel
that Spain's interests in Gibraltar could best be accommodated?
(Mr Caruana) She can have what all foreign
countries have in other foreign countries to protect whatever
interests they might have in that country and that is a consulate.
25. But you do have a unique scenario.
(Mr Caruana) If your question is to imply
that it is obvious to us that Spain has a legitimate claim to
the sovereignty of Gibraltar, the answer is that we do not think
it has, nor has it ever been the British Government's view that
it does.
26. Could we move beyond sovereignty and to
your day-to-day relationships. Surely your local administrations
work closely together.
(Mr Caruana) Yes; absolutely.
27. How can those best be accommodated?
(Mr Caruana) We recognise that as neighbours
Gibraltar has every desire and every interest in having good relations
as neighbours with Spain and we look forward to that and those
of you who are close watchers of the Gibraltar political scene
know that I invest a lot of political time in cultivating dialogues
at a local level to build co-operation. Of course nobody asks
me to put my sovereignty on the line in exchange for that sort
of dialogue for co-operation, no-one asks me to set up committees
to give the Spanish Government a role in what happens inside Gibraltar,
just as I do not in exchange for co-operation with Spain ask to
be given a say in how they govern themselves across the border.
Dialogue for co-operation yes. Dialogue on an open agenda basis,
yes. Meaning that open agenda is open for both sides, yes. Understanding
by that, that that allows Spain to raise the issue of sovereignty
for discussion, why not? That is what open agenda means and it
cannot just be open for me and not Spain. But always within the
parameter that nothing can be agreed in respect to the future
of Gibraltar without the freely expressed wishes of the people
of Gibraltar and freely expressed does not mean, "Take whatever
deal we agree by next summer or be left behind", whatever
that might mean.
28. Much has been made and is made of the benefits
to the economy of Gibraltar from its exclusion from the VAT and
Customs tariffs of the EU. Would Gibraltar continue to function
as a self-sufficient economy if it were not for these exclusions
from the VAT and common Customs tariff regulations?
(Mr Caruana) It would require a significant
re-positioning of our economic base. Whenever you hear that point
made on a Spanish lip or by somebody you think might be influenced
by Spanish lips, bear in mind that Ceuta, Melilla and the Canary
Islands, who are an integral part of the European Union, not as
colonies but as integral parts of metropolitan Spain, are also
outside the Common Customs Union of the European Union.
29. But there are others, other than people
from Spain or people from the Canary Islands, who would argue
possibly that Gibraltar is trying to have its cake and eat it
by expecting to be treated as a fully functioning part of the
EU, while at the same time opting out of the VAT and Customs tariffs.
(Mr Caruana) But that is what bits of
Spain benefit from as well. Let me just say that this exclusion,
to which our economy is now adjusted and which would represent
a severe distortion of our economic organisation if it were now
sought to be altered, was actually insisted on not by the Government
of Gibraltar but by the Government of the United Kingdom when
they were negotiating the United Kingdom's terms of entry, back
in 1973, or presumably before that since accession was in 1973.
They advised the then Gibraltar Government that VAT was a very
expensive tax to collect, in other words that the administrative
cost to yield ratio was disproportionately high for a small territory
and for the small sums of money involved. It was the United Kingdom
that recommended to us and indeed more or less decided that Gibraltar
should be excluded from that as well as from the Common Agricultural
Policy for the more obvious reason that we do not have any and
coal and steel for an equally obvious reason, since we do not
have that either. As far as the common Customs regime in general
is concerned, it has advantages and disadvantages, but for the
moment our economy is significantly orientated towards the fact
that we do not have a Common Customs Union and indeed as we speak
the United Kingdom is fighting a case in the European Court of
Justice on the basis that that exclusion has also as its natural
consequence the fact that Gibraltar also cannot be a part of the
Single Market in goods. No-one is arguing to resolve the issue
by reversing our exclusion from the Common Customs Union. The
United Kingdom is defending what is the consequence of that exclusion,
which is not being questioned.
Mr Hamilton
30. Chief Minister, it is a pleasure to see
you here in the House of Commons. I want to pick up two issues:
one is about the Single Skies agreement and the effects on Gibraltar
of exclusion from Single Skies; the second relates to telephone
lines. Before I go on to those, may I just ask you this? Do you
really believe that United Kingdom parliamentarians in this place
would ever transfer sovereignty against the wishes of the people
of Gibraltar? I do not mean Government, I mean parliamentarians.
(Mr Caruana) That requires an analysis
of how Parliament is now organised in terms of the party system
and the relative strengths of the party institutions within Parliament,
upon which I am not an expert, but of which I take note from a
safe distance. You have asked me about Single Skies. In November
1999, we first saw the European Commission's proposal to subscribe
as a community—many of the countries, indeed I think all
of the countries, were already members in their own individual
rights, but this was a proposal by the Commission to subscribe
collectively—to the so-called Eurocontrol Convention, which
is a much more widely based international convention dealing mainly
with the control of air space, but not exclusively so. At that
stage we wrote to the Foreign Office saying, please, this is the
air equivalent of the External Frontiers Convention, make sure
that we are not suspended from this because this is in effect
the first European atlas of the air. It is the first attempt to
define the boundaries of European air space and if you exclude
or suspend Gibraltar from this, it is massive progress for Spain.
The answer we received in a letter from the Foreign Office was
that with regard to negotiations as to EU's accession to Eurocontrol,
the UK made it clear at the working group on 18 November 1999
that they would not accept a clause suspending Gibraltar from
the application of the EU accession to Eurocontrol. A period of
time followed, during which language was sought to see how Spain's
position could be accommodated in a way that was safe for Gibraltar.
They did not prosper and as a result, in September of this year,
the UK Government agreed to Gibraltar's suspension from the EU
Single Skies package of measures and, the following week, to a
proposed EU regulation on aviation security. It had been the policy
of the British Government, I think attested to in front of this
Committee on the last occasion that it met, that the British Government
would not agree to Gibraltar's systematic exclusion from EU aviation
measures under pressure from Spain. Mr Chairman, it is not possible
for us to conceive of that aviation measure from which the British
Government would not now systematically exclude us, if it has
agreed to exclude us from one relating to aviation security. I
cannot think of anything more important than that, from which
the Foreign Office would think it wrong to exclude Gibraltar.
31. Presumably this is all about access to the
airport by Spain. That is certainly the impression I got when
I was there in September. Can you elaborate on that a little?
Is that in your opinion what exclusion from Single Skies is about?
(Mr Caruana) The Foreign Office draws
a distinction between exclusion and suspension. As far as we are
concerned, it is a distinction without a difference. If you are
suspended from something until you agree to share the sovereignty
of your airport with somebody else, then that is not a suspension,
that is a permanent suspension and a permanent suspension in the
knowledge that the conditions for lifting the suspension are unacceptable
to us is de facto an exclusion. It was agreed to on that
basis. Unfortunately, the premise of your question is not quite
accurate. We had the 1987 airport agreement, which bound the UK
to agree Gibraltar's suspension from measures relating to what
you have said in your question, services to Gibraltar airport
or from Gibraltar airport to airports in other countries of the
Union, so-called access directives. What is more serious about
this package of suspensions—exclusions de facto we
call them—is that they do not relate to access measures,
they do not relate to inter-airport services, they relate almost
exclusively to things that happen inside Gibraltar and Gibraltar's
contribution to aviation security in terms of what it does in
its own airport. We are now being excluded from aviation measures
which do not involve cross-border air services, the suspension
from which would have been justified under the infamous 1987 airport
agreement itself, something which should never have been perpetrated.
32. May I move on quickly to telephone lines?
That is a very serious issue. If the 100,000 telephone lines which
Spain has offered to Gibraltar are not sufficient, why do 30,000
Gibraltarians need more than 130,000 telephones?
(Mr Caruana) The issue about telephones
is not just about numbers of numbers, it is also about mobile
phones working or not working in each other's territory. It is
also about calls that try to reach Gibraltar prefixed 350 getting
lost in the channel through Spain. Gibraltar's telephone companies
have legal complaints in front of the European Commission, arguing
that this is a breach of competition law. The European Commission
incidentally—the Committee might be interested to know—the
very same Directorate General that has rushed to be as aggressive
as it can against Gibraltar on state aids and our finance centre,
that very same group of individuals which has rushed against us
in that direction has sat on its hands completely inactive in
the face of our complaints on telephones. What we have said to
the British Government consistently on telephones is, "Do
not please handle this matter in a way that converts Gibraltar's
EU rights, which you are asking the Commission to enforce, into
a bilateral political haggle with Spain. Do not kick this into
the Brussels agreement".
Chairman
33. And the answer to that?
(Mr Caruana) We have begged them not
to do that, they have done that, the result is that Mr Piqué
now offers in effect 50,000 usable extra numbers, although the
headline figure is 100,000, and it has emerged in the Brussels
process as an act of generosity by Spain in a process in which
she says she needs to be paid back by parallel progress on sovereignty.
Where we have actually been landed on this issue in a nutshell—because
I know I am trying the Chairman's patience—is this. Gibraltar's
legal rights in this matter, as apparently in all others, appears
to be unenforceable and unjusticiable in accordance with our legal
rights and Community legal procedures.
34. Why do you need 130,000 telephone lines
with 30,000 population?
(Mr Caruana) That still provides us with
a smaller ratio than the United Kingdom enjoys per capita
and that is the argument the Foreign Office uses against Spain,
so I am free to adopt it myself with some comfort. Instead, Spain
rations us numbers in accordance with what Mr Piqué says
are her assessments of our needs and—and he says this quite
openly; one at least has to admire their clarity of position—openly
says they are only giving us 50,000 extra numbers because they
need to protect their domestic telephone industry from competition
from Gibraltar, "Oh, and by the way Mr Caruana, please do
not think that you will be allowed to use any of these numbers
to develop your allegedly opaque finance centre". That is
what we face when all that we have asked is for our legal rights
to be adjudicated. To boot, even the UK press now presents this
situation as an act of generosity on Spain's part that we must
obviously jump to reward by negotiations of our sovereignty. What
have been flagrant breaches of Spain's obligations over five years,
coupled with complete dereliction on the part of others to bring
her to book about it, now becomes political leverage against us
in the context of our sovereignty. Look, with all due respect
to all those involved, I cannot think of a more ineffectual way
to conduct not just the interests of the people of Gibraltar but
the legal rights of the people of Gibraltar than this.
Ms Stuart
35. If I recall rightly, you started this session
by telling us you were a reasonable man. I have so far seen very
little evidence of that. I have seen evidence of sophistry and
what lawyers would call circumstantial evidence. The status
quo is not acceptable. Negotiations will take place. May I
ask you a very simple question? What do you think is the best
way in which the interests of the people of Gibraltar can be served,
by your presence at these talks or an empty chair?
(Mr Caruana) Even the truth is capable
of being articulately put. It is not just spin that is capable
of being persuasively articulated. This business of sophistry
is not to be confused with the passionate and the persuasive articulation
of the democratic rights of 30,000 British citizens who seek no
more than for the United Kingdom to abide by what has been its
persistent assurance to the people of Gibraltar since 1969 and
that is that our British sovereignty should not be sacrificed.
You say that the status quo is not acceptable. It is the
first time that I have heard that. The British Government's position,
which is not quite as you say, is that it is not sustainable.
That is an objective fact, that is an objective analysis as to
whether it is sustainable or not. You are now introducing the
concept of it being unacceptable. I would have to ask "To
whom?". It is certainly acceptable to the people of Gibraltar
whom the British Government say have the right to decide their
own future.
36. Chief Minister, that is exactly sophistry.
(Mr Caruana) Oh, I see.
37. What I asked you, the bottom line, was what
is the best way of representing the long-term interests of the
people of Gibraltar, for the Chief Minister to be part of the
negotiations or for an empty chair to be there?
(Mr Caruana) The best way for all sides
to represent the people of Gibraltar and to uphold the rights
of the people of Gibraltar is to behave like democracies. In democracies,
the wishes of the people prevail. The only undemocratic, unreasonable
event we continue to face, both Gibraltar and the United Kingdom,
is that Spain says that we are an anachronism, whereas in reality
the anachronism is that she wants to usurp our sovereignty, she
wants to usurp a role in my society and in my community, contrary
to the unanimous wishes of the people of Gibraltar. That is the
anachronism in the Europe of the twenty-first century, not that
I should wish to retain what I have had for 300 years which is
British sovereignty. But I do not want you to think that I do
not want to answer the substantive part of the question, although
I have to say that I reject rotundly your suggestion that I have
engaged in sophistry. I do not engage in spin. Others are engaging
in spin as we speak in the British press against the people of
Gibraltar and I am doing what little I can to counteract that.
I have advocated a sensible process of dialogue with Spain, when
the present incumbent in ministerial office in the Foreign Office
had not even dreamt of the possibility that they might one day
find themselves as Ministers in that Department of State. That
is the reality of it. Therefore I do not really need to be portrayed
in the court of British public opinion, as some sort of bigot
who does not even want to engage in dialogue, when I have invested
a considerable amount of political capital in Gibraltar in the
very opposite approach to life. All that is different to being
bounced into a process of dialogue which is profoundly undemocratic
in its structure, namely that I, the democratically elected leader
of the democratically elected Government of Gibraltar, which your
Government says enjoys the right to self-determination bar independence,
am expected to go along to a process of dialogue which is said
to be to decide my destiny, but I express my opinions, others
do the deals above my head and then put them to my electorate
in a referendum. With the greatest of respect, Mr Chairman, it
is not I who am embarking on undemocratic attitudes, it is those
who seek to bounce me into that wholly politically unacceptable,
unreasonable and completely counter-productive exercise.
38. I may take from this answer that the interests
of the people of Gibraltar are better represented by an empty
chair than by the presence of the Chief Minister.
(Mr Caruana) An empty chair in the terms
the chair is being offered to me, absolutely so. There is no prospect
of my attending dialogue on those wholly unreasonable terms which
are only calculated to lend politically legitimacy to a process
in which my real political input is limited to expressing my opinions.
Incidentally, let me tell you, Mr Piqué has just finished
telling the people of Gibraltar and Spain that even my right to
express an opinion is not unlimited, because I am only free to
express an opinion on matters which in his view are of my competence,
which by the way, in case you do not know what that means in shorthand,
is not about sovereignty, which he thinks is none of my business.
Chairman
39. Chief Minister, you know that the Government
have expressed the wish to conclude the negotiations by the summer
of next year. What are the prospects of you taking that chair
during the course of the period before the summer of next year?
(Mr Caruana) I mostly answered that question
just now, but I am glad to add a new dimension to it. I reject
outright the suggestion that hard work has been done to procure
my presence. The Foreign Office knows in detail what my longstanding
position is on participation in dialogue, knows in detail what
the public political position in Gibraltar is on the need for
certain reasonable political terms for participation in dialogue.
Knows what my manifesto commitments are, knows what we went through
in 1996 and 1997. The terms that have been offered to me on this
occasion go nowhere near meeting them and in fact are worse than
were offered to me in 1996 and 1997. I will go to any process
of dialogue in which I can behave in a way, in which I can participate
in a way, which does not require me to forfeit the people of Gibraltar's
aspiration to self-determination. What does that mean? It means
it cannot be bilateral because if it is bilateral I am completely
accommodating, genuflecting to and conceding that the future of
Gibraltar is to be decided, not in accordance with the right to
self-determination, but in a bilateral process of sovereignty
negotiations between London and Madrid. Let me tell you one more
thing, if you will give me leave. The reason why I will not go
to talks on the terms which are offered to me are the exact same
reasons why Spain insists that I go only on those terms. In other
words, the reason why I feel that I cannot safely, from Gibraltar's
point of view, go to a process of dialogue which is structured
bilaterally, only reflects the fact that London has caved in to
Spain's insistence that it should be so, because Spain knows that
means complete victory for her. I should just like to add by way
of conclusion on this question if there are no others, to Ms Stuart
through the Chair, that no-one in this room should think that
I fear dialogue with Spain or that I do not seek dialogue with
Spain. Only two weeks ago, when I was in Madrid to take part in
a Spanish television programme, I invited and had a lengthy, several
hours, dinner with the most senior civil servant in the Spanish
Foreign Ministry, the equivalent of Sir John Kerr in the Foreign
Office and his two most senior officials dealing with the Gibraltar
issue. I have always sought dialogue with Spain, I have always
advocated dialogue with Spain. I am conducting dialogue with Spain,
but it has to be dialogue that works for London, for Spain and
for Gibraltar and not just works for Spain. That is what is on
offer to me. That is the dialogue I have declined to take part
in. Anyone who wants to pretend to the great British public, or
great British Parliament, that my position is any different to
that, is doing the cause of this process a great disservice because
they should understand that the Gibraltar Government's position
enjoys the overwhelming support of almost the entirety of the
population of Gibraltar. To misrepresent and to distort our position
on dialogue in this manner does absolutely nothing to improve
Gibraltarian confidence in this process of dialogue.
Chairman: Chief Minister, you have made your
Government's position very clear indeed. We thank you again for
your attendance.
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