Select Committee on Foreign Affairs Minutes of Evidence

Examination of Witnesses (Questions 244-260)


26 MARCH 2008

  Q244  Chairman: Minister, welcome to you and your colleagues. We are pleased to have you here. This, as you know, is a two-part session in which we have two Ministers—first, yourself, talking about Gibraltar, and then your colleague, Meg Munn, talking about the other Overseas Territories. It is interesting that we have this split of ministerial responsibilities. May I ask you to introduce your colleagues, and then we will begin?

  Jim Murphy: Thank you for the invitation to be here today. I look forward to the time that will be devoted to Gibraltar. James Sharp is head of the Western Mediterranean Group, and Ivan Smyth is a legal adviser at the Foreign and Commonwealth Office.

  Q245  Chairman: May I begin by asking you a general question about the new Gibraltar constitution, and what it means for the UK? Are there risks in increasing and maximising the level of self-government to an overseas territory?

  Jim Murphy: In Gibraltar's case specifically, the new constitution that it agreed to by referendum is about the right balance. It does not jeopardise UK sovereignty, and that is very clear. There is general acceptance of that, and that was the basis of the understanding around the agreement and the referendum. It changes the relationship, while not jeopardising sovereignty, and shows that the UK is involved only when it is appropriate to be involved. It gives the Gibraltar Government a greater formal role in the governance of Gibraltar in an important and sensible way. It is a modernisation, and it has been described by others as an end to the colonial relationship, although I have never described it in those terms. It is a modernisation and improvement, and a sensible move forward, while establishing and protecting the principle of British sovereignty.

  Q246  Chairman: But it will mean that on some issues relating to, for example, social policy, there will be different legal requirements in Gibraltar than in the UK.

  Jim Murphy: The Government of Gibraltar will come to their own policy and legal positions within the terms of the agreement. That is the unavoidable consequence—but a desired one on occasion—of the nature of devolution and such constitutional arrangements.

  Q247  Sandra Osborne: These differences in policies between devolved Administrations and others are issues that we are familiar with. Despite the constitution, as far as the UN is concerned, Gibraltar is still a colony and is listed as such in the UN Special Committee of 24. How important is it for Gibraltar and the UK for Gibraltar to be de-listed as a colony as far as the UN is concerned, and what are the UK Government doing to try to achieve that?

  Jim Murphy: I will not respond to the initial comment, because we are here to talk about Gibraltar rather than Scotland.

  Chairman: That is not an overseas territory.

  Jim Murphy: I look forward to it never being so.

  On Gibraltar, the fact is that the UN Special Committee of 24 process is still there. We do not think it reflects the modern sentiment between the United Kingdom and Gibraltar. We continue to argue the case, but we continue to co-operate on the fantastically titled form 73E—Ivan will correct me if I am wrong—on the basis, first, that it is part of the UN charter and, secondly, that it shows a determination to continue to co-operate in a process and sea change. It is important, not just in Gibraltar, but in terms of the UN's posture on that committee. Generally, the committee's colonial description does not reflect the modern reality of Gibraltar, and perhaps Meg Munn, my fellow Minister, will reflect on whether it reflects the modern sentiment in other overseas territories. Generally, I do not think it does, and we should move away from that UN process. We continue to argue that.

  Q248  Sandra Osborne: Presumably the Spanish would oppose Gibraltar being de-listed. Would that be a stumbling block?

  Jim Murphy: I think we must get agreement through the UN, and Spain's voice is important. We continue to discuss, and to convince. It is not and cannot be—Mrs. Osborne will be aware of this—a matter of us shouting our case more loudly. It is about making our case increasingly coherently, based on the modern arrangements between the United Kingdom and Gibraltar. That is a task that we continue to be committed to.

  Q249  Mr. Heathcoat-Amory: Can we visit the European Union for a minute? It is a subject on which we have exchanged views in the past and, I am sure, will do so again, because it touches on the interest of Gibraltar? Mr. Peter Caruana gave evidence to us, and said that Gibraltar was not given any opportunity to influence the outcome of the treaty negotiations, even though it is, of course, part of the European Community and looks to the Government to defend it. It was told that it was a fait accompli and that its concerns could not be addressed. Is that your reading of the situation?

  Jim Murphy: I look forward to our future endeavours in debates, of course, on the EU, but I thought that we would find common cause in the view that Gibraltar at least was able to agree its new constitution by a referendum.

  The fact is that the Lisbon treaty is pretty clear, and I think we have reassured Peter and others. We are certainly clear that Gibraltar's status as a consequence of the Lisbon treaty is unchanged. There is a declaration to that effect, and on that basis the remaining substantial issue—Peter is more than capable of speaking effectively for himself—is the role of the Parliament. The facts are, as the Committee will be aware, that these issues are outstanding not just in terms of what happens in Gibraltar and the deliberations of politicians in Gibraltar, but in terms of politicians here in the House of Commons, the House of Lords and the devolved Administrations throughout the United Kingdom. That is something that must be worked out with Peter and his colleagues—the exact democratic opportunity for the Parliament and the Government to be involved.

  Q250  Mr. Heathcoat-Amory: I am talking about negotiation of the treaty, which will be binding on Gibraltar. Directives that we agree to are, of course, binding on Gibraltar, so it will be affected by changes to existing treaties and their replacement by the treaty of Lisbon. Mr. Caruana said that the memorandums that he submitted were effectively ignored, and that he was told that the negotiations were a fait accompli—that was the phrase he used. That is not very good stewardship of an overseas territory. Will you tell us whether you met his concerns, and, if not, why not? Gibraltar is a self-governing entity, but it seems to have been unrepresented at the negotiations, which affect it. According to the Chief Minister, you failed to do that. That is serious.

  Jim Murphy: I met the Chief Minister to discuss those very points, and I think that the Committee has copies of the relevant correspondence between him and me.[1] Let me give details of the chronology: he sent his memo, and I received it, after the intergovernmental conference mandate had been negotiated. The United Kingdom was involved on that basis—you rightly followed the issue with great care, Mr. Heathcoat-Amory, over that period—and its chief negotiating position was about achieving the much-discussed red lines. The memo from Peter came after the mandate was concluded; we did not want to reopen the mandate, for well rehearsed reasons, and we felt that there was no requirement to do so because Gibraltar's position was unaffected. As I have said, I received the memo after the conclusion of the IGC mandate.

  Q251  Mr. Heathcoat-Amory: Mr. Caruana says that he submitted a memorandum in 2004—before the final terms of reference on the treaty were decided, so you had plenty of time. Again, we did not meet his concerns. Given that the Bill ratifying the treaty is still before Parliament, is not there a way in which to correct some of this by ensuring that Gibraltarian concerns are met, at least regarding the degree of oversight of how the treaty is implemented?

  Jim Murphy: There is obviously no opportunity today, and nor has there been in recent months, to reopen the IGC mandate process or to rewrite the treaty. As I have said, the treaty does not affect Gibraltar's status; both we and Spain are clear about that. The major consequence for Gibraltar is about providing an opportunity for politicians there to be part of the important new role for regional or sub-national Parliaments.

  In terms of the earlier memos, there was, of course, earlier correspondence based on the old constitution. I do not think that the Committee would thank us for rehearsing our arguments of recent months on that. That memo was relevant to the old constitution. On the IGC negotiation process on the Lisbon treaty, I received a memo after the IGC mandate had been concluded, so the opportunity was not there. Of course, there is still to be a process of debate in the House of Lords on whether the treaty should be ratified in the Bill, but it is for their lordships to reflect on whether this issue should gather their attention. I reiterate, however, that the situation in Gibraltar is unaffected. The memo on the treaty was received after the mandate. This issue might have been mentioned occasionally during our recent, prolonged debates in the House of Commons—some would say that the debates were not long enough—but it was not a issue on which parliamentarians or the Government were lobbied by the Government of Gibraltar on specifics during the passage of the Bill.

  Q252  Andrew Mackinlay: The suspension of the Chief Justice of Gibraltar is a source of considerable disquiet, although not necessarily because of the circumstances. The suspension of any Chief Justice anywhere cannot be done lightly or in a fickle way—I am not suggesting that it was—but some of us are concerned that there are not sufficient safeguards. However, there is a London Foreign Office dimension, through the Governor, because he is a creature of the Foreign Office and he has acquiesced to the suspension. In the UK, there is a high hurdle to clear before suspending or dismissing a judge. Are you happy about the machinery to deal with the specific instance, because at this moment the Chief Justice is suspended? Are we meeting international norms? There is considerable disquiet among your colleagues here about that.

  Jim Murphy: I am sure you are right. The process and the specifics will cause disquiet to anyone who is in personal contact with the Chief Justice. It is a remarkably difficult time for the individuals involved, so I will not comment on the specifics of the case.

  Q253  Andrew Mackinlay: No, I was not asking you about that. It is the principle. In a democracy, can you have a small legislature, or Government or even a Governor suspending a Chief Justice? Should not the hurdles be high? Indeed, should not there perhaps be a London dimension to this?

  Jim Murphy: The Committee will reflect on this in its findings. The established process is that this is not a decision for London; it is a decision for the Governor. Under the constitution, it is for the Gibraltar Judicial Services Commission to address these very points on whether to suspend the Chief Justice. There is a legitimate debate as to whether that is something in which London should have a smaller or greater role. It is a judgment for the Committee and it is a judgment generally. Our judgment is that it is an issue that should be handled by the Governor in the context of this constitution. We talked earlier about Gibraltar having an additional power and role in terms of its own democracy and its own functioning. This is an important part of it.

  Q254  Andrew Mackinlay: I may want to return to this when we speak to your colleague Meg Munn later on the wider principles. Is this Chief Justice a contract Chief Justice, or—I am not sure of the correct legal term—is he there in perpetuity until normal retirement age?

  Sir Menzies Campbell: Ad vitam aut culpam.

  Jim Murphy: I am advised that he is there for a set period of time. If that is not the case, I will write to the Committee.[2]

  Q255  Andrew Mackinlay: May I explore this with you and you may want to come back to this? A judge who is there for a specific period of time, both in this overseas territory or anywhere else, is particularly vulnerable. Basically, if he is not liked, he can be got rid with a little bit of patience and by his contract not being renewed. This cannot be right, can it? Judges should not be fearful that their contracts might not be renewed.

  Jim Murphy: This is an important point about the independence of the judicial process, but without being tempted—I know that you are not tempting me to do so—to trample on to the specifics, I should point out that some of the material that is already in the public domain may be pertinent.

  Chairman: We will move on to the wider issue of the Overseas Territories generally and then I will bring you in again later, Mr. Mackinlay.

  Q256  Mr. Hamilton: Minister, may I move to relations between Gibraltar and Spain? As you know, we have had quite a few meetings with the Trilateral Forum since September 2006. When the Government of Gibraltar gave their memorandum to this Committee, they spoke very positively, as you would expect, about the forum. They said, "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."

  However, when the Leader of the Opposition in Gibraltar, Joe Bossano, gave his evidence to the Committee, he totally contradicted that, as you might expect. He said, "little comes out of these things ... If anything new is in the pipeline and we are on track to achieve it, we will know it after the event and will then have to judge it post hoc. We cannot evaluate it beforehand, because no information is available." Are you satisfied with the outcomes of the meetings of the Trilateral Forum since September 2006?

  Jim Murphy: Generally, yes. First of all in terms of the structure the trilateral process is a better more mature structure. That is an important new architecture—if you like—of agreement and discussion that enshrines the right of the Government of Gibraltar to be an equal partner in those discussions. In principle, having all three parties in the room at one time, rather than the series of bilateral meetings, is a step forward. I do not wish to get involved in the internal disagreements between Peter and Joe but it is generally regarded that, on the freedom of movement of people, roaming charges and other important matters, there has been substantial movement during this process: on ease of movement across borders, traffic lines and additional lanes. Important improvements of substance, not just structure, have been made on those things.

  It might be helpful if I inform the Committee—I do not know whether this is in the public domain or the Committee is aware of it—that in November last year the relevant officials agreed a shortlist of six new areas for future agendas, which included co-operation on the environment, financial services and taxation, maritime communications, education, justice and law enforcement, and visa issues. Those are substantial and important additional subjects that will now be placed within that trilateral process. The important thing is that the structure is now in place and that we can go beyond just celebrating its establishment, which inevitably was what happened initially—in itself, its establishment was a step forward. We must now ensure that the structure delivers. It has done so in important ways already, but we can now do much more.

  Q257  Mr. Hamilton: Clearly, following the election of Zapatero's Government, and their subsequent re-election, there was a sea change in relations between Spain, Gibraltar and the United Kingdom. Of course, before that, there were constant discussions about Gibraltar's sovereignty and whether it had a right to continue as it was. Are sovereignty discussions between Spain and Gibraltar now permanently off the agenda, or is the sovereignty issue still in the background as far as Britain's relations with Spain and Gibraltar are concerned?

  Jim Murphy: I share your assessment about the very mature and principled position of the Spanish Government. We have seen a real willingness to engage on the principle and the detail. Without infringing on Spanish politics, I should say that we now have a very healthy dynamic. Of course, on occasions, we disagree. Is sovereignty off the agenda for ever? Such conversations cannot stop people raising matters, but we have made it very clear—I think, Mr. Hamilton, that you were at the Gibraltar day celebrations at the Guildhall when I made this speech—that the UK Government will never—"never" is a seldom-used word in politics—enter into an agreement on sovereignty without the agreement of the Government of Gibraltar and their people. In fact, we will never even enter into a process without that agreement. The word "never" sends a substantial and clear commitment and has been used for a purpose. We have delivered that message with confidence to the peoples and the Governments of Gibraltar and Spain. It is a sign of the maturity of our relationship now that that is accepted as the UK's position.

  Q258  Mr. Hamilton: I am sure that the people and Government of Gibraltar will be very grateful, as is the Committee, for that statement and reiteration.

  Chairman: Now can we switch our focus? Sir John Stanley please.

  Q259  Sir John Stanley: The Cordoba agreement was a huge step forward that had eluded previous Governments of all political complexions in putting relations over Gibraltar between Britain and Spain on a sensible and constructive basis. I commend and congratulate the Government on that achievement. However, I am not easily satisfied, and I hope that the Government will now achieve the same resounding success in the military sphere as in the civil sphere. I am sure that you will agree that it is intolerable and indefensible that a NATO ally of this country should continue to impose restrictions on NATO flights and Royal Navy sea passage to Gibraltar in the area of Spain. Those restrictions, as I know you will acknowledge, are totally contrary to the letter and the spirit of the NATO treaty, and I hope that you will tell the Committee what steps the Government will take to produce a military and NATO equivalent to the Cordoba agreement on Gibraltar in the civil field.

  Jim Murphy: Sir John makes a fair point about the agreement, which has eluded Governments of both political persuasions; it is a testament to the consistent work done over a number of years not only by politicians, but by a number of very dedicated and talented officials, and it has been warmly welcomed.

  On the military issues, you are right that it is unacceptable—in a NATO sense and because this is a nation with which we have otherwise excellent relations—for such restrictions to be in place. We will therefore continue to press the Spanish authorities. We are also monitoring the consequences. Although some of the public comment has suggested that this will undermine Gibraltar, and people can make that point, the more substantial impact in the long term will be on the UK's military posture and military capacity as a result of that lack of sea, air and road movement. We monitor the consequences in precise detail, and, thus far, despite our objecting in principle to Spain's position, the measures have not had an impact on military capacity. There have been issues about pieces of kit, and I think diving equipment is the one example where there has been an issue on the border. Generally, however, we monitor the situation, and we will continue to press Spain because it is unacceptable for a NATO ally and a country with which we have great relations to have such restrictions in place. We are determined to make progress on this and we do so through the Foreign Office and the Ministry of Defence.

  Q260  Sir John Stanley: Can you tell us whether ongoing negotiations are taking place to produce a NATO military equivalent of the Cordoba agreement?

  Jim Murphy: Whether it is equivalent or parallel to Cordoba, there are certainly ongoing efforts to bring a solution to this. Whether you could call it parallel to Cordoba, we will know only by the end of the process, but there is a process of bilateralism. Perhaps the Committee would find it helpful if I said that, despite the Trilateral Forum mentioned earlier, this remains a bilateral process, for understandable and important reasons. Bilaterally, we are working hard with our friends in Spain on this matter. It may be helpful in time to update the Committee as that progresses, Mr. Chairman.

  Chairman: Thank you. In fact, if you can send us a note on that, we would be very grateful.[3] Unfortunately, because of our time constraints, there are one or two other issues that we may want to pursue in writing.[4] However, we are conscious of the fact that we have another Minister waiting to come in, so we thank you, Mr. Murphy, and your colleagues, Mr. Sharp and Mr. Smyth, for your contributions, and we look forward to seeing you on future occasions. We will now break for a few minutes while we change witnesses and we will then continue the session.

1   Received in confidence. Back

2   Ev 361 Back

3   Ev 361 Back

4   Ev 361 Back

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