Letter to the Chairman of the Committee
from the Chief Minister, Government of Gibraltar, 11 January 2005
Thank you for your letter dated 16 September
2004. I apologise for the failure to reply which has been due
to administrative oversight in this office. I do hope that the
information that I am providing is still in time to be of some
use and interest to the Committee.
The issue at the heart of this matter is very
important, politically and constitutionally, for Gibraltar. As
you know, Gibraltar like all other British overseas territories,
is a separate political, legal and administrative jurisdiction
from the UK, and has its own administrative competent authorities.
As they do in all other Overseas Territories, our competent authorities
interact as necessary with their counter parts in other countries
in the administration, implementation and operation of international
conventions and treaties.
No country, except Spain, has ever placed any
obstacle to dealing with our constitutional competent authorities
in this normal way. Spain, which has historically been opposed
to our Constitution and to any and all degree of self Government
for the people of Gibraltar, seeks to deny recognition of our
competent authorities and to our Government, believing that, as
a colony, Gibraltar must always act via the appropriate Whitehall,
domestic UK authority. This is obviously unacceptable to Gibraltar,
since there is no reason why the international status of our authorities
should be different, or treated differently, to those of any of
the other British Overseas Territories.
In 1999 the UK was negotiating accession to
certain parts of the Schengen Acquis. These involve a particularly
large amount of interaction between competent authorities because
of the subject matter of Schengen, eg police and judicial co-operation
etc. Spain saw her chance to advance her position in this regard
and seized it. She made it clear to HMG that Spain would veto
UK's accession to the Schengen Acquis unless Spain's position
on Gibraltar competent authorities was accommodated. Spain's position
was not just that her own competent authorities should not have
to deal with Gibraltar, but that no Member State's authorities
should do so.
Our position was, and remains, that the legal
and constitutional realities are what they are, that we have our
own competent authorities, that the UK domestic competent authorities
have no right to deal with Gibraltar as if we were administratively
part of the UK, and that it is politically and constitutionally
unacceptable for Gibraltar to be treated differently in this regard
to other British Overseas Territories.
A very long, detailed and difficult three sided
negotiation ensued, culminating in the April 2000 agreement, which
enabled the UK and Gibraltar to subscribe to those parts of the
Schengen Acquis that is was seeking to sign up to.
The basis of the Agreement was that the Gibraltar
competent authorities would exercise competence in respect of
Gibraltar under EU instruments and measures but would formally
channel its communications to competent authorities in other EU
Member States via a liason office in the FCO called "the
United Kingdom Government/Gibraltar Liason Unit for EU Affairs".
The Gibraltar Government was able to agree to
these arrangements for the following reasons:
1. the competence of the Gibraltar authorities
was upheld; and
2. there was no discriminatory treatment
with other British Overseas Territories because Gibraltar is the
only EU member among the BOTs and the arrangements were limited
to EU instruments and to the formal communications with other
EU Member State competent authorities.
Throughout the negotiations GOG made it clear
(and HMG accepted) that 2 above was a crucial factor and that
under no circumstances would GOG agree to extend these arrangements
to non-EU measures and to non-EU states because that would result
in treatment of Gibraltar being, for international treaty administration
and implementation purposes, different to the treatment of other
BOTs. HMG fully accepted this, hence the prefix of Clause 5 says
that "These arrangements will apply as between EU Member
States to: . . ."
Furthermore the list in Clause 5 of the measures
to which the arrangements would apply was the subject of excruciating
negotiation in this context, namely, EU measures and some specific
Council of Europe measures that had become inextricably linked
up with EU measures.
Such is the importance of this matter to us,
and the UK's recognition of it, that, in relation to Clause 5(e)
("other treaties to which both sides agree that these arrangements
should apply") HMG provided us with a side-letter agreement
to the effect that HMG would not agree to extend the arrangements
to any "other treaties" without GOG's specific consent
and agreement in each case.
Despite the clear basis of the agreement being
that it is limited to EU (and related) measures and to dealings
with EU States (save as otherwise specifically provided and agreed)
Spain has, from the outset sought to widen the scope of the arrangements.
Her purpose is to achieve the complete elimination of Gibraltar's
international, administrative identity and status. Spain's objective
is that Gibraltar competent authorities should have no direct
dealings with any other countries authorities under any international
instrument or measure. This is legally, constitutionally and politically
unacceptable to Gibraltar, as it is to HMG and, I am certain,
to the Committee.
I would be happy to answer any specific questions
which the Committee may wish to put to me in relation to this
matter.
The Hon Peter R Caruana QC
Chief Minister
Government of Gibraltar
11 January 2005
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