Examination of Witness (Questions 240-243)
HON. PETER
CARUANA QC
5 MARCH 2008
Q240 Andrew Mackinlay: I do not know
whether you have given this any thought, but looking at the constitutions
of Bermuda and Gibraltar, as distinct from other Overseas Territories,
it seems that the competencies, rather than the franchise, and
the Governor relationship, are very similar to those that prevailed
in the Federation of Rhodesia and Nyasaland and, from the break-up
of the federation, of Southern Rhodesia before the unilateral
declaration of independence, with full domestic powers and the
governor relationship that you outlined. However, there also used
to be a High commissioner in London, who—this goes back
to the small, but not unimportant point raised by Lindsay Hoyle—used
to lay a wreath on Remembrance Sunday along with the other High
commissioners. Is there not a case for reminding the UK that the
status and powers, not of all Overseas Territories, but of Gibraltar
and Bermuda are comparable to those of the lawful Federation of
Rhodesia and Nyasaland?
Peter Caruana: Yes, what you have
described, Andrew, is an accurate summation of the extent of our
powers of self-government. It needs to be borne in mind that,
under the new constitution, the Governor's role in the governance
of Gibraltar is very limited. It is limited to external affairs,
which are actually not done by him, but by the Foreign Office;
defence, which is not really done by him, but by the Ministry
of Defence; and formal appointments. In other words, he is the
appointer of public officers, but he does not even exercise any
discretion, because he has to act on the advice of the local commissions,
as I have explained. The role of the Governor in governing is
therefore almost a misnomer. The answer to your question is yes:
the degree of self-government would certainly justify such a view.
On the question of laying a wreath at the Cenotaph,
I remember Chief Ministers asking for that at the Overseas Territories
Consultative Council. The informal feedback was that that would
do the Foreign Secretary out of a job because, although nobody
in the United Kingdom appears to know this, when he lays a wreath
at the Cenotaph, he is there solely and exclusively on behalf
of the Overseas Territories, so if they were to lay their own
wreath, the Foreign Secretary would have to be written out of
the ceremony.
Q241 Andrew Mackinlay: But my point
was that you and Bermuda are unique—it, too, could be unique—compared
with Tristan da Cunha and St. Helena, and I mean no disrespect
by that.
Peter Caruana: We would be honoured
and privileged if we could lay our own wreath at the Cenotaph.
It has to be said, of course, that we are very proud of Gibraltar's
direct physical links with the second world war, in particular.
We are very proud of our own, quite high-scale Cenotaph-like ceremony
in Gibraltar on Remembrance Sunday. I would hate to have to be
torn, although I am not sure that they coincide in dates. [Interruption.]
Yes, they do.
Q242 Andrew Mackinlay: Your high
commissioner would do it if you had one—that is the point.
I am giving you clues here.
Peter Caruana: Yes. I am always
looking for extra work for Albert.
Chairman: I am very conscious of time.
I want to conclude in five minutes.
Andrew Mackinlay: I have one more question.
Chairman: Very briefly.
Q243 Andrew Mackinlay: Of course.
I shall be brief, as all the other Members—who are not here
now—were. They have peeled off.
We are looking at the Overseas Territories,
and we are particularly looking at your constitution and probably
Bermuda's. You have full, internal self-government and you have
a new constitution, of which you are very proud, jealously guarding
its powers. However, as much as you wish to remain an Overseas
Territory, as you have outlined, one of the things that we must
consider in this inquiry is what are United Kingdom/EU norms?
In my brief, I have a list of areas, but there are issues such
as same sex marriage or civil partnerships, and various issues
regarding the question of what are deemed to be human rights.
I am not suggesting in any way that there is
any flaw in Gibraltar, as it were. However, when we are looking
at the Overseas Territories, we must have regard for that issue.
I wonder whether you have a view on it. Clearly, there is now
a mood in the United Kingdom Parliament about matters relating
to sexual orientation such as civil partnerships. There is also
the issue of the freedom of the press. We have heard a complaint
from somebody who says that your Government will not advertise
in a particular journal, for example. I hesitated before raising
this issue, because I thought, "Well, that's a matter for
you." On the other hand, is not freedom of the press something
that, overall, is a norm? It is something for which we must have
regard.
I use those issues only as examples. We must
decide, if you want to be in the club, as it were, of Overseas
Territories, whether or not there are certain expectations—a
line, as it were, in which we say, "Yes, you must legislate
for that and you have discretion in your own legislature, but
we expect this level to prevail."
Peter Caruana: It depends where
you draw the line on that level. As I say in my paper, the United
Kingdom is certainly entitled to demand and expect from its Overseas
Territories that they comply fully and promptly with international
legal obligations binding on the Overseas Territories through
the United Kingdom. That certainly meets with no resistance from
Gibraltar; that is absolutely right.
In Gibraltar, our constitution—you have
the document in front of you—contains human rights provisions
that reflect every provision of the European convention on human
rights. Unlike in the United Kingdom, where you have only been
able to have recourse to the United Kingdom courts for alleged
breaches of your rights under the ECHR since the Human Rights
Act 1998 was introduced, citizens of Gibraltar have been able
to have access to domestic courts in Gibraltar to allege breaches
of human rights since 1969, or even 1964, because the constitution,
which explicitly sets out those rights, coinciding with the European
Convention on Human Rights, is primary law in Gibraltar. The constitution
supersedes any statutory law that the Gibraltar Parliament might
pass. So, our people have been in the position in which your citizens
have been since the Human Rights Act was passed in the United
Kingdom since 1964.
Our human rights observance in Gibraltar is
complete. What happens, Andrew, is that lobby groups elevate their
wish list to human rights, and they are not human rights. Human
rights are things that countries have got together and agreed,
in the European Convention on Human Rights in the case of Europe,
to be human rights. Once countries agree that those things are
human rights, they become legal international obligations. Gibraltar
fully complies with that. There is an issue about the equalisation
of the age of consent, and I am very happy to express the Government's
position on that issue.
However, if you are asking whether I think that
the Overseas Territories, as part of being part of the club, as
you put it, should be obliged to mimic UK domestic policy on things
that fall below the radar and are not legal human rights, such
as a particular Government of the United Kingdom choosing to allow
same sex marriages, and whether it should be legitimate for the
United Kingdom to say to its Overseas Territories that, as a condition
of remaining Overseas Territories, they, too, must permit same
sex marriages, when there is no human rights international legal
obligation to do so, the answer to that question is, in my opinion,
a very loud no. It would be completely intrusive and interfering
to export UK culture to some physically remote places that have
different cultures, such as the Caribbean and elsewhere. So, the
answer to that question is no.
On the question of the newspaper, Mr. Chairman,
will you please just allow me—
Chairman: We have one minute, and then
I must conclude.
Peter Caruana: I will deal with
the questions in 30 seconds. On the equalisation of the age of
consent, a European Court of Justice case states that it is a
breach of the European convention on human rights not to have
the same age of consent for gay and heterosexual sex unless an
objective justification can be made for it. It seems unlikely
that we will be able to make an objective justification, and therefore
it seems probable that we will have to equalise our ages of consent.
If that is the case, we will do so.
We have not withdrawn advertising from any newspaper.
The newspaper that you have in mind is not advertised in by the
Gibraltar Government, and neither was it advertised in by the
Gibraltar Socialist Labour Party Government when they were in
office, because even they recognised that it was a party news
sheet. I have not withdrawn advertising. I have followed the practice
of the previous Government in that respect and that is understood.
Chairman: Chief Minister, I am very sorry,
but Prime Minister's Question Time is starting in four minutes,
and many of us have to go to the Chamber. We have already extended
this sitting. I hope, if there are any other matters that we wish
to pursue, that we may do so in writing. Thank you very much to
you and your colleagues for coming this morning. It has been a
valuable session.
|
