APPENDIX 11
Memorandum from Dr Ken Ruiz, Sheffield
1. I gather the Foreign Affairs Select Committee
is to visit Gibraltar at the beginning of July this year to consider
further issues concerning Gibraltar at this time, particularly
as relate to matters which HMG is currently discussing with the
Spanish govt. If I may I would like to express my views on these
matters as you are gathering evidence once more.
2. HMG is acting unconstitutionally by entering
arrangements with Spain regarding Gibraltar's sovereignty, not
first having obtained Gibraltar's agreement (by universal suffrage
or by consent of its elected representatives) to do so. The very
first words of the Gibraltar Constitution (1969)—the often
quoted preamble—are;
"Whereas Gibraltar is part of Her Majesty's
dominions and Her Majesty's Government have given assurances to
the people of Gibraltar that Gibraltar will remain part of Her
Majesty's dominions unless and until an Act of Parliament otherwise
provides, and furthermore that 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".
The current talks on sovereignty of Gibraltar
are unconstitutional, and therefore any conclusions they arrive
at cannot be legitimate.
3.1 One of the options being discussed by
HMG we are led to believe is the partitioning of Gibraltar. In
November last year the Foreign Secretary expressed his opinion
that such partitioning might occur, with the land of the isthmus
able to be negotiated away separately from the rest of Gibraltar.
I expressed my views on these thoughts of the Foreign Secretary's
at the time, and they were included as evidence in the last Foreign
Affairs Committee Report on Gibraltar (First Report, Session 2001-02,
published 4 December 2001, p.74)
3.2 Discussion of the isthmus being discussed
separately was waned, but instead there is talk of the naval base
being negotiated away separately from the rest of Gibraltar in
as much as while joint sovereignty with Spain is proposed for
the major part of Gibraltar, the naval base would continue to
be entirely sovereign British territory. There can be no justification
whatsoever for this to occur, and again I explained why in my
view this was not possible in my evidence previously presented
to this Committee. My closing remarks for my argument then, which
still apply today and cover every part of Gibraltar, were;
"Therefore, whatever terms or arrangements
or treaties or by whatever means the isthmus is held under, be
it by the same means or different as those by which the rest of
Gibraltar is held to be British, none of it is open to being gifted
by Britain to anyone without the consent of the Gibraltarians
that it should be so. Not only are the people of Gibraltar indivisible
from the land of Gibraltar, all that land that is Gibraltar
is also indivisible without the consent of the Gibraltarians."
4.1 One has to ask what is to happen when
all the current fuss has died down. What is certain is that there
will be no change in Gibraltar, as the people appear to be vehemently
opposed to change as countenanced by the Foreign Office. That
is not to say that change itself is unwelcome. Is change necessary
however?
4.2 Messrs Straw and Hain have stated frequently
over the last few months that Gibraltar's current status is unsustainable,
and must change. They have also stated with increasing frequency
of late that it is better not to sign up to a deal at all than
to sign up to a bad deal. One must ask of course, who is to be
the judge of whether the deal is a good or bad, and good or bad
for who? It must be the case that the deal must be seen as being
good or bad for Gibraltar and no other party—those most
affected by any deal or change. Equally, the judges of whether
the deal is a good or a bad one must be the Gibraltarians and
no-one else, for exactly the same reasons.
4.3 On not signing up to the deal that is
currently being pursued, we are left with the current status,
which is by the words of the various ministers is unsustainable!
If they are to be believed, one must conclude that, in the event
of the current negotiations with Spain not resulting in anything
concrete (almost certainly to be the case given public opinion
in Gibraltar) it will be necessary to pursue an alternative means
of altering Gibraltar's current status. In any case, the Brussels
Process will have come to its end and to no avail, the problems
existing between Gibraltar and Spain remaining unresolved. All
efforts by all concerned since 1984 would have been a waste of
time and effort.
4.4 That being the logical conclusion of
the statement made by the various ministers at various times,
one must ask who will negotiate Gibraltar's status? Well, the
Brussels Process with Spain will have been concluded, and nothing
will have been achieved. The only interested party NOT to have
been involved in any process is Gibraltar. Any future process
seeking to resolve the impasse must therefore include Gibraltar
(mandatory from a moral standpoint and not yet tried) and exclude
Spain (tried and failed). This is in fact the only legitimate
option which should have been considered in the first place as
Spain has no legal right to determine anything in Gibraltar.
4.5 The only legitimate negotiations of
Gibraltar's constitutional status are the Gibraltarians themselves
together with the administering power, the United Kingdom. First
Gibraltar and then the UK being the most affected by any constitutional
change must be satisfied and in that order. Spain, a gatecrasher
at the party and the least affected by Gibraltar's constitutional
status must be the lowest priority of those whose aspirations
are to be satisfied. If as HMG stated months ago, it wishes to
see a once-and-for-all resolution to the problems which exist
between the UK and Spain over Gibraltar, the only logical thing
to do is to resolve Gibraltar's constitutional status in such
a manner as will render Gibraltar forever unattainable by Spain.
Spain will have no option but to abandon all hope of ever gaining
sovereignty over Gibraltar, however long it may take them to come
to this inevitable conclusion. This I believe can best—perhaps
only—be achieved by integrating Gibraltar within the United
Kingdom. If done appropriately, several things can happen simultaneously;
(a) The ToU will cease to have any relevance
whatsoever, as the only "relevant" part of it today
is the reversionary clause to Spanish sovereignty, which will
have been rendered obsolete. The act of making Gibraltar unattainable
by Spain in this manner will not in any case have contravened
the terms of the ToU, as Gibraltar remains sovereign British territory.
What would be stated then is that not only did Spain cede Gibraltar
to the UK in perpetuity in 1713, the UK is taking Gibraltar into
itself a manner which renders it forever indivisible from the
UK.
(b) Gibraltarians would have by negotiation
with the UK have expressed their will and will have determined
their own future, in accordance with UN doctrine on the right
to self-determination of a colonised people.
(c) Gibraltar can be de-listed as a colony,
being removed from the UN list of non self-governing territories.
4.6 Appropriate terminology will have to
be employed in the expression of Gibraltar's new status to ensure
that Spain's discrimination against Gibraltar in all spheres including
the EU can be countered effectively by a hitherto reluctant United
Kingdom. It will then be frankly impossible for the UK to cave
in to Spanish pressure as it has done so consistently in the past.
Spain will doubtless continue to pursue her claim over Gibraltar,
for a while at least. The difference would be that from such a
time as Gibraltar became incorporated within the UK, it would
be as difficult for HMG to permit Gibraltar's exclusion from any
aspect of EU legislation under pressure from Spain, as HMG excludes
any other part of the UK.
5.1 It was once said that Gibraltar could
not pick and choose what aspects of EU legislation might and might
not apply to it. What has no far occurred instead is that Spain
has picked and chosen what parts of EU legislation should apply
to Gibraltar, and the UK for whatever reason has gone along with
Spain. Meanwhile, Spain has picked and chosen what EU legislation
in precisely the fields of finance and VAT might apply to parts
of Spanish territory which Spain insists are integral parts of
the Spanish state such as the Canary Islands, Ceuta and Melilla.
5.2 Similar arrangements and exclusions
can be secured for Gibraltar if sufficient political will can
be exercised. Gibraltar derives a significant proportion of its
income from the finance sector, and the legality of aspects of
this has recently been confirmed following scrutiny by the European
Commission. Therefore, it would not be illegal to continue these
practises even if not widely practised within the rest of the
EU. If Spain should complain about Gibraltar's exclusions, she
would only have herself to blame for setting the example as to
how it could be achieved.
Thank you for the opportunity to make these
comments.
Dr Ken Ruiz
Sheffield
May 2002
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