Examination of Witnesses (Questions 244-260)
MR. JIM
MURPHY MP, JAMES
SHARP AND
IVAN SMYTH
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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