Examination of Witness (Questions 40-59)
WEDNESDAY 28 NOVEMBER 2001
40. Order, order. Mr Hain, we welcome you, together
with Mr John Macgregor, who is the Director, Wider Europe, and
Mr Richard Jones, Deputy Head of the European Union Department
(Internal) of the Foreign and Commonwealth Office (FCO). I believe
you attended the earlier part of this session when we posed questions
to the Chief Minister. You have talked about concluding the current
talks by the summer of next year, that is the talks taking less
than a year. Why the hurry?
(Mr Hain) Thank you very much for inviting
me to this session. If I may, I shall come directly to that point
in just a minute. The sixth report of the Committee, that is your
report of 3 April 200,
recommended that we take action to empower the citizens of Gibraltar
to vote in the European elections. I am delighted to announce
the Government's intention that for the first time ever the Gibraltar
electorate should be able to vote in the European parliamentary
elections. The Government fully supports Gibraltar's aspiration
and right to be represented in the European Parliament. We are
committed to achieving this in time for the new elections in 2004.
This will require domestic legislation in the UK, so we shall
be seeking the legislative time in order to bring in the necessary
domestic legislation; we shall of course proceed in close consultation
with the Gibraltar authorities.
Sir Patrick Cormack
41. Will Gibraltar be a constituency?
(Mr Hain) That has as yet not been decided.
We are going to explore the detail.
42. That is a most welcome announcement. It
is something the Committee have been pressing for and we shall
watch the details with great care. Now to the question: why the
(Mr Hain) I shall of course be happy
to discuss the details with you and keep you closely informed.
The situation is that we are dealing with a dispute which has
run on for 300 years since the Treaty of Utrecht. We are dealing
with a dispute which has aggravated life in Gibraltar for many,
many years and with which all recent governments of Britain have
had to contend, Conservative and Labour. More recently things
have come to a head by a whole series of other aggravations, continuing
border delays, about which we have regular and justifiable complaints
from the people of Gibraltar and its Chief Minister almost on
a weekly basis, denial of telephone opportunities, again about
which we have consistent and regular representations and I have
had personally from the Chief Minister, whether it is lack of
mobile access or lack of external lines and so on. The obstacles
in the way of Gibraltar airport, which should be the centre of
the whole region. These are just some of the issues which have
aggravated the situation. In addition we face a situation where
Gibraltar has been suspended now from two EU regulations in respect
of air safety and air security. The war of words continues between
Madrid and Gibraltar. The European Union, our fellow Member States,
do not understand why two very senior members of the European
Union, who in other respects have a common agenda, continue to
allow their dispute over Gibraltar to get in the way of important
business which affects all our security such as air safety, including
flights to Gibraltar. This has produced in our minds a situation
where we must try to break the log jam and do so as soon as we
can with fresh thinking in Madrid, as there is, with fresh thinking
in London, as there is, which I hope in time will also produce
fresh thinking in Gibraltar. You cannot change a situation of
continuous enmity between Gibraltar and Spain with continuous
aggravation for the people of Gibraltar except by dialogue, which
is what we are embarking on.
43. But you have set a short timetable. You
know the result of the 1997 referendum, where almost 100 per cent
of the people of Gibraltar voted effectively to stay with UK sovereignty,
you heard the views of the Chief Minister today. What possible
evidence is there that the views of the people of Gibraltar have
changed in the interim?
(Mr Hain) I am encouraged by the Northern
Ireland experience. If you had asked me ten years ago whether
we could achieve a situation in which the governments of both
the United Kingdom and the Republic of Ireland could come to a
common position, together with the people of Northern Ireland
and their political representatives, if you had said that to me
ten years ago, I would have said there was no prospect of it at
all. How did we overcome those deep historic entrenched divisions;
very different from Gibraltar in the sense that there was the
most terrible violence, nevertheless common in this sense that
there was a constitutional issue dividing opinion there, there
was deep bitterness, there was a lot of aggravation? How did we
achieve it? We got people around a table talking. We changed minds.
Everybody changed minds. All I am inviting the Chief Minister
to do, backed by the people of Gibraltar and backed also by opposition
politicians in Gibraltar who should give him the right to come
and have Gibraltar's voice represented in these talks, is to say
that by dialogue these are better ways of moving the situation
forward for the people of Gibraltar.
44. Clearly he is not going to tango. In retrospect,
do you not think it would have been a wiser course to have had
a dialogue within the UK, a dialogue in Gibraltar about the options
before bringing in Spain?
(Mr Hain) This has been a longstanding
process. We are picking up the Brussels process discussions and
meetings from the situation first begun under Baroness Thatcher's
Government when Lord Howe was Foreign Secretary in 1984. We are
picking up that process. It has been a process pressed upon us
by the European Council in Gothenburg. I was present at that Council.
They urged us as two important Member States to get back together.
This is what we are doing. I have detailed discussions with the
Chief Minister and with others in Gibraltar urging Gibraltar's
voice be heard in those discussions. I think it is terribly important
that their voice is heard in those discussions and I continue
to urge that it be so. There is nothing to fear from talking,
Sir John Stanley
45. As you well recognise, the precise wording
using by Ministers in anything to do with Gibraltar and the Spanish
relationship is of the utmost significance. Studying the parliamentary
answers you have been giving in recent weeks, there is a very
marked discrepancy in the answer you have given on the issue as
to the entitlement of the people of Gibraltar to a referendum
in circumstances where there is a change in sovereignty. The discrepancy
exists between the answer you gave on 19 November with the earlier
answer you gave on 30 October, to the same question in effect.
On 30 October, in reply to Mr Andrew Rosindell, you said this.
"The Government stand by their commitment to the people of
Gibraltar set out in the preamble to the 1969 Constitution which
enshrines the principle of consent of the people of Gibraltar
to any change in sovereignty". I stress the phrase you used,
"to any change in sovereignty". On 19 November, in answer
to Mr Andrew Turner, you used this formulation, "The Government
stand by the commitment set out in the preamble to the 1969 Gibraltar
constitution that we will not enter into arrangements under which
the people of Gibraltar would pass under the sovereignty of another
state against their freely and democratically expressed wishes".
It is self-evident that there is a huge difference between an
undertaking to give the people of Gibraltar an entitlement to
express their consent in a referendum, where there is in your
words "any change in sovereignty" to the alternative
position which you postulated on 19 November whereby a referendum
would be available in the circumstances where Gibraltar would
pass under the sovereignty of another state. So the question I
would wish to put to you is this. Will you give an absolutely
clear and unequivocal undertaking to this Committee that any change
in sovereignty will require the consent of the people of Gibraltar
in a referendum?
(Mr Hain) Yes. I do not understand why
there is any doubt in your mind. If I had answered the second
question in exactly the same way as the first, I should simply
have referred the answer to the first question as in the normal
way. What I did in that other answer was put on record literally
an extract from the legislation of May 1969 which says "Her
Majesty's Government will never enter into arrangements under
which the people of Gibraltar would pass under the sovereignty
of another state against their freely and democratically expressed
wishes". In my mind I was answering the question in a slightly
different way, but I was actually getting on record effectively
the wording of the 1969 legislation.
46. What I am seeking to clarify is that at
the outset of this negotiation in which the British Government
has apparently agreed to put sovereignty on the table
(Mr Hain) As did the Conservative Government
before us, as does the Chief Minister accept would be the case.
47. With sovereignty on the table. There are
clearly three possible outcomes. One is no change in sovereignty.
Two will be some form of joint arrangements, joint sovereignty.
Three, theoretically only I trust, a total transfer of sovereignty
from Britain to Spain. Those are the three possible areas of outcome.
What I take away from the yes, which you have just given, is that
if the British Government and the Spanish Government agree on
a range of joint arrangements, in which there is a move from exclusive
British sovereignty to some form of joint sovereignty, you have
now given this Committee an unequivocal assurance that any form
of joint arrangements will require the consent of the people of
Gibraltar in a referendum.
(Mr Hain) I do not accept that those
are the only three options. I wish life were as simple as that.
There is no question, and I am very happy to repeat that to the
Committee, there is absolutely no question of this Government
simply handing Gibraltar over to Spain full stop. Let us get that
out of the story entirely. There is no question of us just handing
over sovereignty to Spain, that would be against British law,
it would be against the principles of democracy which we hold
very dearly to.
48. And it would not get through this Parliament.
(Mr Hain) And it would not get through
this Parliament. To come to your question, any alteration of present
arrangements of sovereignty will be put to the people of Gibraltar
full stop. It is absolutely crystal clear and I do not understand
why anybody has the slightest doubt about it.
Sir John Stanley
49. Does that include all forms of joint arrangements?
(Mr Hain) Anything which affects sovereignty.
Anything which affects sovereignty. I am not getting into the
detail of discussions which are very confidential at the present
time. I do not want to setthough it obviously seems I have
from the earnest sighs around your tableany hares running
in false directions. I cannot conceive of joint arrangements being
in any way implementable without some change in sovereignty. I
cannot see how that is possible. Take the sighs and the laughs
and the amusement back. The simple answer is that anything which
provides for any joint sovereignty, if that is the outcomeand
I have no way of knowing whether it will bewill go to the
people of Gibraltar.
50. What you are sayingand I am trying
to put a totally accurate summation on it and correct me if this
is not rightis that there could be the possibility of various
joint arrangements which both the British and the Spanish Government
deem not to be changes of sovereignty, which in turn would not
be put to the people of Gibraltar in a referendum. That is what
I believe you are saying to us.
(Mr Hain) That is not on the table. I
honestly tell you straight, that is not on the table. I do not
think that would take the situation forward either with Spain
or with the people of Gibraltar, therefore I think you are chasing
false hares and it should not even come into the consideration
of this Committee. May I say one other thing? May I take you back
to the joint press communiqué, a very significant one issued
last week by the Foreign Minister of Spain and our own Foreign
Secretary, Spain for the first time agreed that we share a common
objective of a future where Gibraltar enjoys greater self-government
and the opportunity to reap the full benefits of a normal co-existence
with the wider region. The guiding principle is to build a secure,
stable and prosperous future for Gibraltar and a modern sustainable
status consistent with our common membership of NATO and the European
Union. If we are talking about increased self-government, that
is something that Gibraltar has wanted, that it can look forward
to if we can bring these negotiations to a successful agreement.
51. Thank you for that. Just before we leave
this particular point, I was very interested in your comments
in your opening remarks that you drew your experience and hope
from what has happened in the island of Ireland in recent years.
From my memory, I understand that the Republic of Ireland had
to change its sovereignty claim on the six counties of Northern
Ireland in order for progress to be made. May I ask you therefore
whether the Spanish Government shows any signs of being willing
to compromise its long-standing sovereignty claim on Gibraltar?
(Mr Hain) I am not going to get into
the detail of discussions and you would not expect me to. If it
had been appropriate for the Secretary of State for Northern Ireland
to come to give evidence to this Committee or for that matter
to the Northern Ireland Affairs Select Committee in the middle
of the proceedings leading up to the Good Friday Agreement or
subsequently to reveal what discussions were or were not going
on, we would never had reached an agreement.
52. So you are not able to tell us whether Spain
have or have not changed their mind on their sovereignty claim
(Mr Hain) What I can tell you is that
there is absolutely no prospect of the British Government agreeing
to full Spanish sovereignty over Gibraltar; no prospect of that
53. That begs the question.
(Mr Hain) Somebody from the back row
has just interjected "full". The trouble with this debate
is that there is a kind of lawyer-like insistence on reading 50
different things into virtually everything I say. I am being absolutely
straight and frank and some people have accused me of being too
frank. We will not agree to hand Gibraltar over in any shape or
form to Spain. That is not on the agenda, nor is Spain asking
for us to do that.
54. May I move on to another area and refer
you to the Foreign and Commonwealth Office circular 015-01 which
was kindly circulated to the Committee in which in the implementation
of EC legislation the statement is made, "HMG has always
taken the view that a further consequence of the Act of Accession
is that measures adopted under Article 95 TEC which have as their
objective the removal of barriers to trade in goods are not applicable
to Gibraltar". My question is: why did HMG come to take that
view, particularly as it is now being challenged by the Commission
and is before the European Court of Justice?
(Mr Hain) That was part of Britain's
Accession Treaty. That has been the historic situation. What we
have in prospect is an entirely new status for Gibraltar within
the European Union if we are successful in the Brussels process
negotiations. I think there would be clear benefits to Gibraltar
from a closer relationship with the European Union and the erosion
of the border with Spain, free movement of goods, services and
people, greater scope for economic co-operation with the Campo
and the wider region, full and free access for Gibraltar's firms
to the world's largest post-enlargement market, larger than the
US and Japan combined, by, for example, easier access to Spain
and the EU by reducing and removing the Customs/passport controls
at the border and all the extra business that would attract to
Gibraltar's port. There is more choice and better value for Gibraltar's
consumers, economies of scale and access to services which are
impossible for a community of only 30,000.
55. So the view on the applicability of those
measures is probably misguided.
(Mr Hain) May I just say this? Impossible
for a community of only 30,000 people to realise on their own
such as access to education, health, storage facilities across
the border, easier access to Gibraltar's English language, legal
and business expertise by expatriates on the Spanish coast. The
point is that if we could make the Brussels process discussions
successful, there is a fantastic prize for the people of Gibraltar,
an end to the aggravation with Spain, better access to all the
opportunities the European Union offers, greater prosperity, more
jobs and I think that is a prize which should invite the Chief
Minister to come to the table and represent his people in the
56. I want to put to you what is going to happen.
I shall tell you what the game plan is and you can say I am completely
wrong on all four counts, because if I am right I shall throw
Hansard back at you. The first thing is that these discussions
are very conveniently going to conclude, wham, bam, at the time
of the parliamentary recess, so there will be no statement to
the House of Commons. Secondly, there will not be a referendum
and I shall tell you why there will not be a referendum, because
the satisfactory conclusions of the discussions are going to fall
short of sovereignty. Spain will have moved on a bit and you will
not have conceded sovereignty in accordance with the terms of
the replies you have given to Sir John Stanley and others today,
so there will be no need, will there, for a referendum? Thirdly,
there will be no primary legislation. Fourthly, any amendment
to the Constitution will be done by Order in Council on which
we are lucky to an hour and a half's debate. Am I wrong on four
(Mr Hain) Yes. I disagree with my good
friend Andrew on every point. No, there will be no agreement in
the middle of the recess. Yes, of course the House of Commons
will be fully consulted; of course it will. Yes, if any agreement
is reached, and I do not know whether it will be reached, though
we are pretty optimistic, then yes, there will be a referendum.
Finally, if we did reach an agreement which covered sovereignty
questions, and I do not know whether that is possible or not,
but if we did, not only would there be a referendum in Gibraltar
but of course there would have to be primary legislation in Britain
57. Just in passing, it is the same Government
which told me that it was neither possible, nor should it happen
that the franchise should be extended to the people of Gibraltar.
That is this Labour Government. Now they are having to do it,
not virtuously but because they have no alternative because the
courts have told them to do it. My next question is this. You
heard me say to the Chief Minister that Gibraltar is being traduced,
I personally believe on the spin of the Foreign Office, but certainly
the Parliamentary Private Secretary actually referred to smuggling
in a broadcast in the past few days. You have heard his rebuttal
of this. I put it to you, and this is your opportunity to say
where you disagree with the Chief Minister, that, no doubt there
is smuggling, there is smuggling in Tilbury, but there is not
smuggling in the sense of a great scandal, no worse than elsewhere
and it is containable. Secondly, the police are your responsibility
not his, there is general fulfilment of European Union directives
and the financial sector is as he has described. Is that right?
We can stop all this humbug, this traducing by innuendo about
the stewardship both of the Governor, who is your appointment,
and the Chief Minister and his colleagues?
(Mr Hain) I remember a little while ago
driving up the Spanish coast, going onto Gibraltar and back off
again across the border and then further eastwards and thinking
how much easier it would be to smuggle things into Spain via a
boat pulled up on the beach than somehow to pull a boat up onto
the Rock where there was no beach and then get it through the
border. That was my impression. If you were to invite my opposite
number, the Spanish Europe Minister, Ramon de Miguel to give evidence
to youand I dare say he might even be prepared to do sohe
would go on to you at length about smuggling.
58. But what do you think?
(Mr Hain) I am actually telling you what
I think. My Private Parliamentary Secretary was expressing one
of the criticisms the Spanish make of the Gibraltar Government
absolutely consistently and they cite a lot of evidence which
I have never seen about smuggling and it is an issue in the discussions
and it does relate to good relations between Spain and Gibraltar.
This is why it is important to get people round the table and
discuss these issues.
59. You cannot abdicate responsibility. You
either have to say here today (Mr Hain) I have
seen no evidence on smuggling myself.
13 HC 319, Session 2000-2001. Back