Submission from the Government of Gibraltar
The Gibraltar Government ("GOG") welcomes
the Committee's inquiry into the exercise by the Foreign and Commonwealth
Office ("FCO") of its responsibilities in relation to
the Overseas Territories.
THE FCO'S
RESPONSIBILITIES FOR
GIBRALTAR
The responsibilities of the FCO, as a Department
of State of the United Kingdom Government, for the governance
of Gibraltar are those set out in the new Gibraltar Constitution,
namely, responsibility for Gibraltar's external affairs and defence.
Under the Gibraltar Constitution, and under
UK law, the Governor is the representative in Gibraltar of Her
Majesty the Queen, as Queen of Gibraltar. He is not a representative
or official of HMG in the UK. Powers reserved in the Constitution
of Overseas Territories to Her Majesty (or Her Governor) are thus
NOT powers reserved to the UK Government or to the FCO. When a
Secretary of State advises Her Majesty in the exercise of a reserved
power he does so in his capacity as Her adviser qua Queen of that
Territory and NOT in his capacity as Minister or on behalf of
the Government of the United Kingdom.
These propositions were established by the Appellate
Committee of the House of Lords in its judgement in the Quark
Case—Regina v Secretary of State for Foreign and Commonwealth
Affairs ex parte Quark Fishing Limited, [2005] UKHL 57). This
case is seminal to a proper analysis and understanding of the
Gibraltar Constitution and to the powers and responsibilities
of the FCO, and to the role of Governors there under.
Under Gibraltar's new Constitution, the Governor
retains responsibility for internal security, (including certain
functions relating to the police) and certain formal functions
in relation to appointments to public offices acting on the advice
of Commissions (see section 47). Responsibility for all other
matters (save where the Constitution specifically vests it in
some other Gibraltar non-governmental authority, eg Judicial Service
Commission, Police Authority etc) is vested in Gibraltar's elected
Government.
Flowing from the UK's international responsibilities
for Gibraltar, the UK has the right to ensure that Gibraltar is
in compliance with all international legal obligations binding
upon it. Subject to that, responsibility for standards of governance,
transparency and accountability, regulation of the financial sector
and human rights in Gibraltar vest in the people, Government,
Parliament, Judiciary and democratic processes of Gibraltar, as
they do in the UK and other democracies.
Accordingly, subject to compliance with domestic
and international laws, the arbiters of the quality of governance
in Gibraltar are the Parliament, the media and, especially, the
electorate of Gibraltar.
Under the Gibraltar Constitution no governmental
or statutory authority of Gibraltar, including the Governor, is
accountable to HMG in the UK, or to the FCO. GOG is accountable
to HMG in the UK only for compliance by Gibraltar with binding
international obligations.
Under the New Constitution, Her Majesty (not
HMG in the UK) reserves the power to make laws from time to time
for the peace order and good government of Gibraltar. This power
does not vest in the FCO or in the UK Government. This is an exceptional
and residual power intended to be used only in exceptional circumstances.
UK Ministers no longer have the power to disallow laws made by
the Gibraltar Parliament.
Under the new Constitution the Governor is the only
appointment in Gibraltar made on the recommendation of the United
Kingdom Government. Even this is more "de facto" than
"de jure", since in advising Her Majesty on such an
appointment, a Secretary of State is NOT acting on behalf of the
FCO or the UK Government. The Governor is the representative of
the Queen, in Her capacity as Queen of Gibraltar and not the representative
of the UK Government (see Quark case). No other appointment in
Gibraltar emanates from the UK, or is in any sense the responsibility
of HMG in the UK, or the FCO.
GIBRALTAR'S
NEW CONSTITUTION
Gibraltar's new Constitution came into effect
on 2 January 2007. This new Constitution delivers, in very large
measure the policy aspirations of the current Gibraltar Government
as reflected in its election manifestos since 1996. The Gibraltar
Government is thus well satisfied with the outcome of the Constitutional
Reform negotiating process with UK that resulted in the New Constitution.
The New Constitution achieves all of the Gibraltar Government's
major policy objectives in that regard, namely:
1. Enshrinement of Britain's commitment on
the question of sovereignty and close constitutional links between
UK and Gibraltar.
2. Constitutional recognition of our right
to self determination.
3. Maximum self government consistent with
Sovereignty.
The new Constitution renders Gibraltar effectively
self governing to a full practical extent in all areas except
defence and external affairs. The stated policy objective of the
current Gibraltar Government since 1996 has been to achieve effective
decolonisation of Gibraltar by means of Constitutional reform
that would establish a Constitutional relationship between Gibraltar
and the UK that was not colonial in nature, while retaining our
sovereignty and other links with the UK. The Gibraltar Government
believes that the New Constitution achieves this.
THE CONSTITUTIONAL
REFORM PROCESS
Following its election in 1996 with a manifesto
commitment to seek the modernisation of the Constitution, the
Gibraltar Government convened an all party Select Committee of
our Parliament in 1999 which took written and oral evidence from
all persons and entities who wanted to submit views to the Committee
about the proposed new Constitution. The Select Committee also
undertook a clause by clause revision of the 1969 Constitution.
The Select Committee unanimously adopted its report and submitted
it to the full House in January 2002. The full House unanimously
approved and adopted the Select Committee's Report on 23 January
2002. That report became Gibraltar's formal negotiating position
in the bilateral negotiations with HMG in the UK ("the Constitutional
Negotiations").
In order to conduct the Constitutional Negotiations
on Gibraltar's behalf, the Gibraltar Government constituted a
Gibraltar delegation, led by me as Chief Minister but consisting
also of other Ministers, the Leader of the Opposition and the
Leader of the other Opposition Party in the House and of a party
not represented in the House, as well as some of Gibraltar's leading
retired politicians.
After a lengthy but constructive and businesslike
(and most often consensual) negotiating process with the FCO team,
which took the form of various plenary negotiating meetings as
well as numerous exchanges of draft text, the text of a new Constitution,
acceptable to both the Gibraltar and UK delegations emerged and
was agreed in early 2006.
This negotiated text was unanimously approved
by all members of Gibraltar's Parliament on 30 October 2006 and
it was approved (60% in favour) by the people of Gibraltar in
exercise of their right to self determination in a referendum
on the 30 November 2006.
THE STATUS
OF GIBRALTAR
FOLLOWING THE
NEW CONSTITUTION
GOG believes that the New Constitution provides
for a relationship between Gibraltar and the United Kingdom which
is not colonial in nature. The nature and extent of the powers
of self Government and autonomy that the New Constitution bestows
on Gibraltar are not compatible with the view that the relationship
remains a colonial one and that Gibraltar therefore remains a
colony. HMG in the UK shares this view and has so declared publicly.
On 4 July 2006 Minister for Europe Geoff Hoon
said publicly that the Government of the United Kingdom regards
the referendum in which the people of Gibraltar would decide on
the New Constitution as an exercise of the right of self determination
by the people of Gibraltar.
On 22 January 2007 the Permanent Representative
of the UK at the UN wrote to the Secretary General of the United
Nations, informing him of the coming into effect of Gibraltar's
New Constitution and sending him a copy. In it, Sir Emyr Jones
Parry states that the New Constitution provides for a modern relationship
between Gibraltar and the United Kingdom, which description (he
said) would not apply to any relationship based on colonialism.
On 15 October 2007 the UK's new permanent representative
at the UN addressed the Special Political and Decolonisation Committee
(Fourth Committee) on behalf of the British Government in relation
to Gibraltar. He said:
"The New Constitution provides for a modern
relationship between Gibraltar and the UK. We do no think that
this description would apply to any relationship based on colonialism
... Her Majesty's Government shares the view of the Chief Minister
of Gibraltar that Gibraltar is now politically mature and the
UK-Gibraltar relationship is non colonial in nature".
The very same sentiment was expressed by the
then Foreign Secretary Jack Straw to the Spanish Government in
a letter dated 31 March 2006 addressed by him to Foreign Minister
Moratinos.
On 27 March 2006 Jack Straw told the House of
Commons that Gibraltar's new Constitution "strengthens the
links between Gibraltar and the United Kingdom and thoroughly
modernises the relationship between us, which I hope will be as
welcome to the people of Gibraltar as it will to the people of
the United Kingdom".
Gibraltar's International Status and "Delisting"
at the UN
In GOG's view the question "has Gibraltar's
international status changed as a result of the new Constitution"
is misconceived and irrelevant. There can be no doubt about what
is Gibraltar's international status. After the new Constitution
(as before it) Gibraltar remains a United Kingdom Overseas Territory
under the Sovereignty of Her Majesty Queen Elizabeth II. This
international status has not altered as a result of the New Constitution,
although it nature has changed in a very relevant way.
In terms of decolonisation, the relevant question
is whether the relationship between the UK and Gibraltar has changed
from colonial to non-colonial in nature. If it has, the New Constitution
has necessarily resulted in the decolonisation of Gibraltar since,
although Gibraltar continues (as is its wish) to be a UK Overseas
Territory, it is no longer in a colonial relationship with the
UK, and thus is not its colony. Ergo, it will have been decolonised.
The answer to the question whether or not the
New Constitution has decolonised Gibraltar will vary depending
on whose definition of, and criteria for, decolonisation is used.
Clearly, if the sole valid test of decolonisation
is that applied by the United Nations (a proposition that GOG
rejects) then Gibraltar remains a colony, because the new Constitution
fails to meet some if the UN's published criteria for removing
territories from its list of non-self Governing Territories. For
this reason, both GOG and HMG believe that the UN's delisting/decolonisation
criteria are anachronistic, and should be updated to reflect the
realities of the modern relationship between UK and some of its
overseas Territories (such as Gibraltar) with which both are content,
and which relationship is not colonial in nature.
If, on the other hand the test to be applied
is (as GOG believes) an objective assessment of whether the relationship
created by the New Constitution is not colonial in nature, so
that there has been an emergence from colonial relationship in
a practical sense, then a very different answer is obtained. The
UN can of course be the arbiter of whatever criteria it chooses
to adopt, but it is not the sole judge of objectivity and logic
and of factual reality. It is not the sole judge of whether a
relationship desired by both sides is colonial in nature or not.
In the view of both HMG and GOG, the New Constitution
alters the balance of power in Gibraltar, and transfers to the
Gibraltar Government and out of HMG's control, that degree of
power and functions that render the relationship non-colonial
in nature. If Gibraltar's relationship with the UK is now non-colonial
in nature, Gibraltar is not a colony and has been decolonised.
The Committee has been told that the UK can now automatically
stop submitting annual reports to the United Nations about Gibraltar,
and on whether it does so or not depends the acid test of whether
the UK really believes that Gibraltar has been decolonised. This
is incorrect. Under UN Charter and procedures, the UK is required
to continue to submit annual reports under Article 73(e) of the
Charter until the General Assembly votes in favour of the removal
of that territory from its list of non self governing territories.
It appears that the UK is not free to unilaterally discontinue
the submission of annual reports about Gibraltar. The Gibraltar
Government has thus called on HMG to make clear in submitting
this year's Gibraltar report that it does so for that reason,
and asserting that following the new Constitution Gibraltar and
the UK are no longer in a colonial relationship with each other
and that Gibraltar should thus be delisted.
Relations with Spain
In December 2004, the Gibraltar Government was
able to achieve its longstanding policy of an architecture that
would permit of dialogue between Gibraltar and Spain, on basis
that was acceptable to all sides, including Gibraltar. This was
achieved with the establishment of the so-called "Trilateral
Forum" separate from the bilateral Brussels Process. In this
Forum the three sides take part in their own separate right, and
on the same basis as each other. The agenda is open, and thus
not focused or preconditioned on sovereignty. And nothing can
be agreed unless all three sides agree, thus giving Gibraltar
an effective veto on unacceptable agreements. The Gibraltar Government,
which has been calling for precisely such secure terms for dialogue
since 1996, is naturally happy to take part in the Forum now that
it has been established with precisely these terms.
In addition, the unacceptable Brussels Process
has been effectively disabled, because the UK has committed itself
to the Gibraltar Government that it will not take part in any
process of Sovereignty discussions or negotiations with which
Gibraltar is not content. Gibraltar has never been in a position
as politically secure as this.
The first fruits of this new Forum of Dialogue
were the agreements reached at Cordoba in September 2006. These
resolved, on terms which GOG believe to be beneficial to Gibraltar
some of the most intractable and long standing relationship problems
between Gibraltar and Spain including the Airport, the claim of
Spanish pensioners, telephones and frontier fluidity issues. Recognition
by Spain of Gibraltar's international direct dialling telephone
code "350" was obtained. The airport becomes a fully
EU entitled, normal international airport, under exclusive UK/Gibraltar
sovereignty, jurisdiction and control. No passenger has to submit
to controls by Spanish officials in respect of entering or leaving
Gibraltar. There will be no Spanish officials located in Gibraltar.
A red and green channel system was agreed for the frontier. The
UK agreed to fund a settlement of the Spanish pension claim, as
it had been encouraged to do by this Committee in the past. The
Gibraltar Government rejects as political opportunism of the worst
kind the allegation of the Gibraltar Opposition that the pensions
settlement represents unfair discrimination against Gibraltar
and other pensioners—a view rejected by the Gibraltar electorate
at the recent general elections.
The Gibraltar Government remains fully committed
to continue participation in this Trilateral Forum to continue
to achieve the greatest possible degree of friendly and constructive
co-operation and normality of relations between Gibraltar and
Spain. The agenda for the next phase of the Forum includes co
operation on such matters as protection of the environment, maritime
safety, education, financial services and tax, police, judicial
and customs matters.
HUMAN RIGHTS
IN GIBRALTAR
The New constitution (as did the 1969 Constitution)
contains Chapters codifying Human Rights in Gibraltar. The New
Constitution brings those provisions right up to date with the
European Convention of Human Rights language.
The right that citizens in the UK enjoy under
the UK Human Rights Act to bring action directly in the UK courts
alleging human rights violations has been the position in Gibraltar
since the 1960s. Any citizen who believes that his or her human
rights as recognised in the ECHR are being violated may bring
action in the Gibraltar Courts, since the ECHR provisions are
fully reflected in the human rights chapters of our Constitution.
RELATIONS BETWEEN
GIBRALTAR AND
THE UNITED
KINGDOM PARLIAMENT
The Gibraltar Government warmly welcomes and
appreciates the support for, interest in and concern for the political
aspirations and rights of the people of Gibraltar shown historically
and currently by Members of the House on all sides, not just individually,
but also collectively through this Committee and through the Gibraltar
Group. The people of Gibraltar warmly welcome and continue to
rely and count on this support and interest.
An important function of the Gibraltar Governments'
Representative Office in London is precisely to liaise and serve
as a link with and source of information to, members of Parliament
in the UK. GOG believes that Gibraltar's London Representative
should therefore be entitled to an access pass into the Palace
of Westminster in his capacity as Gibraltar Government Representative,
without having to rely on the assistance of any individual Member
of Parliament to facilitate such access.
I will be happy to expand on these, or any other
issues, when I appear before the Committee to give oral evidence
in response to the Committee's invitation to do so.
18 February 2008
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