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Submission from the Government of Gibraltar, 18 February 2007

 

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, e.g. 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 30th 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 the 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 the 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 the 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 & '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.