House of Commons - Gibraltar: Time to get off the fence

Gibraltar: Time to get off the fence - Foreign Affairs Committee Contents

4 Assessing the UK Government response

54. Spain is an important EU and NATO partner, and it co-operates with the UK on a number of strategic priorities for the UK Government, including counter-terrorism and drug smuggling. Since 2001 the UK has pursued a strategic partnership with Spain, establishing bilateral forums for dialogue.[80] Relations between our populations are also strong: 14 million British nationals visit Spain each year, and one million live there.[81] During our recent visit to Malaga to assess FCO consular facilities, we saw first-hand how large numbers of British expatriates are made welcome by the Spanish population and Government.

55. The actions of the Spanish Government over the last three years have therefore placed the UK Government in a difficult position. It has a broad and strong bilateral relationship with Spain that is in the interest of all British citizens, and it is understandable that the UK Government does not want the dispute over Gibraltar to damage this.However, the UK Government also has responsibilities toward Gibraltar and cannot ignore actions by Spain that are intended to make the lives of Gibraltarians difficult.

56. Perhaps in the light of these dual interests, when responding to provocative actions by Spain the UK Government has time and again called for a calm approach to reduce tensions. In July 2012 Lord Howell told the Houseof Lords that the "best way forward" was to press the Spanish Government carefully and "avoid raising the temperature."[82] Mr Simmonds repeated this when giving evidence to the Committee, commenting that: "We are not convinced that ratcheting up either the rhetoric or [...] moving to a more aggressive gunboat diplomacy would in fact be a positive or responsible step to take."[83]Even at the end of his very robust statement to the House on Gibraltar's border and maritime problems in summer 2013, the Foreign Secretary said, "The Government's aim is to de-escalate the tension, so that Gibraltarians can go about their business unhampered and free of intimidation."[84]

57. The Government has emphasised that it considers this approach to be in Gibraltar's interests, as it prevents further escalation. The Government has at the same time repeatedly made strong statements of its commitment to Gibraltar's freedom and security. It has also resolutely confirmed the 'double lock' that prevents the UK from entering into any negotiations on sovereignty without the consent of Gibraltarians. Mr Lidington, Minister for Europe, said on 11 June 2012:

58. Mr Picardo acknowledged the UK Government's language is now more robust than it had been for 30 years.[86]Nonetheless, Mr Simmonds acknowledged to us that there was "a feeling in some parts of the Gibraltarian Government that we need to take a firmer line."[87]Chief Minister Picardo made this very clear in his evidence to us, stating:

59. Spain is a key partner for the UK both bilaterally and in the EU and NATO. It is a testament to the importance that both states place on the bilateral relationship that it remains strong despite our differences. However, Spain should not be able to pursue aggressive policies toward Gibraltar without consequences for its relationship with London.

60. The Government has taken a cautious approach until now in order to 'de-escalate' tensions. Mr Lidington pointed out that this approach recognised that Spain was in a position to apply even more pressure to Gibraltar, if provoked:

Mr Lidington added that the UK Government also had to bear in mind the interests of all of its citizens, and said that it would not, for example, block EU legislation that was in the interests of the EU only to annoy Spain. He denied that the UK was allowing Spain to "simply do whatever it likes" and said that the UK's messages about Gibraltar had been delivered very clearly to Spain.He added that the UK Government "certainly do not rule out any measure that is necessary to defend Gibraltar from a genuine threat to its security or defence".[90] Mr Lidington assured us that any request by the Gibraltarian government for stronger measures would be given consideration, but said there was "no blank cheque" from the UK.[91]

61. Although calculated and at times laudable in its restraint, the Government's approach has not so far produced acceptable results for the people of Gibraltar. This failure was summed up by Mr Picardo: "A year and a half later, we have not engaged in ad hoc dialogue and we have not gone back to trilateral dialogue. The queues are longer and the incursions just as bad."[92]

Does Spain care more than the UK about the Gibraltar dispute?

62. Gibraltar is considered to be one of Spain's priorities in its foreign policy, while it is generally acknowledged to be somewhat lower on the UK's foreign policy agenda. Chief Minister Picardo told us that for Spain, Gibraltar was "the foreign affair":

Jill Morris, Director of Europe for the FCO, assured us that "our embassies around the world have standing instructions to ensure that they are promoting the interests of Gibraltar and protecting the interests of Gibraltar, including intervening in the media where necessary."[94]

63. The Chief Minister also commented on a particular lackof resources in the Governor's office in Gibraltar, stating:

When we challenged Mr Lidington on this, he disagreed with the Chief Minister's assessment and said that the Governor's office was currently supported by a staff of two UK-based diplomats and eleven locally engaged staff, while the British Embassy in Madrid had staff that spent "a considerable amount of time" on Gibraltar issues.He added that "One of my senior officials maintains regular telephone and e-mail contact, personally, with the Chief Minister."[96]Alex Hurst,Deputy Head of the Europe-Mediterranean Department at the FCO, told us that there were a four people in the Gibraltar team in London."[97]

64. Some observers have suggested that not enough ministerial time has been spent in Gibraltar. Mr Lidington told us that he had visited Gibraltar only once during his four years as the responsible minister, but that he intended to go again this year. On 17 June he told the House that he intended to visit again "in the near future".[98] Other ministers have also visited Gibraltar, including Mark Francois, Minister of State for the Armed Forces in December 2013, and Danny Alexander, Chief Secretary to the Treasury, who visited in April 2014. Giving evidence to us before Mr Alexander's visit, the Chief Minister acknowledged that there had not been a high-level minister in Gibraltar and agreed that a visit would be worthwhile, but noted that he had met ministers on his visits to the UK, and believed he had received"fulsome support whenever I have needed to see them, even at short notice." He also pointed out that he had had two opportunities to meet the Prime Minister, which had not been afforded to many of his predecessors.[99]

65. Ministerial visits are an important display of support to the people of Gibraltar, as well as a signal to Spain of the UK's continued commitment. We recommend that, in the light of the difficult twelve months that Gibraltar has experienced, the Government consider a high-level visit to Gibraltar before the end of this yearand we welcome the fact that the Minister for Europe will be visiting shortly.

66. We turn now to the actions the Government has taken in response to particular policies pursued by the Spanish government against Gibraltar.

Diplomatic protests and summons

67. The Government emphasised to us that it responds to each unacceptable action by Spain with a proportionate diplomatic protest. These are usually delivered in the form of a written protest from the British Embassy in Madrid to the Spanish Government. Over the last two years, they have most commonly been used to protest about maritime incursions. The protests form an 'audit trail' demonstrating the continuous exercise of British sovereignty over BGTW, should the UK ever need to prove this in an international court.[100] The below chart shows the number of illegal maritime incursions and the number of diplomatic protests in each month since January 2011:

68. Not every incursion warrants an individual protest. The FCO classify incursions into three categories:

Category A: incursions constituting a threat to UK sovereignty (i.e. a deliberate attempt by Spain to show that it is exercising jurisdiction within BGTW)

Category B: incursions constituting a violation of British sovereignty (i.e. a Spanish boat patrolling and changing course and speed in BGTW instead of maintaining a direct course through the territorial waters)

Category C: vessels exercising a right of innocent passage (not counted as an incursion in the graph above).

Mr Lidington explained that Category A incursions prompted a protest from the FCO within 48 hours, while Category B incursions were sometimes grouped into a single protest, and were delivered roughly once a month.[101]We were troubled to learnfrom Mr Lidington that, at a time when actions were increasing, there were some weeks in early 2014 when incidents were wrongly categorised and not dealt with appropriately by the Embassy in Madrid, meaning that protests were not delivered as quickly as they should have been. Mr Lidington assured us that he had taken action to correct this.[102]

69. We asked for the March 2014 record of incursions and protests, in order to see the FCO's processes at work. We were disappointed to find that although there were 37illegal incursions in March, the FCO did not deliver any related protests during the calendar month. All of the protests for March except one were delivered on 8 and 9 April, the week after our evidence sessionwith Mr Lidington, in which we asked for records. Only one protest was delivered within two days of the relevant incursion.[103] When we enquired further about the March records, it emerged that there were seven Category A incursions in March 2014, six of which were not protested within 48 hours, and were in fact delivered in April, up to four weeks later.

70. The Government has also lodged 34 diplomatic protests on non-maritime issues with the Spanish government between 2011 and 2014. Mostof these (26 of 34, or 76%) were on border delays; other protests were on topics including the conservation zone, the work on the airport, the designation of Gibraltarian waters as a Site of Community Interest (see paras 76-79), and the diplomatic bag incident in November 2013.[104]

71. We agree withthe Government's policy of protestingformally about every incursion into British Gibraltarian Territorial Waters. However, we are concerned that in carrying out this policy, the Government focuses more on the long-term need to establish an audit trail than it does on the immediate need to register a real protest with the Spanish authorities.When the UK delivers protests about maritime incursions three or four weeks after the actual incident, it robs those protests of any force they might have had and gives the impression of an official simply 'going through the motions'.This might be acceptable at a time of relative harmony, but during this period of heightened pressure on Gibraltar, the Government should re-assess its internal deadlines for delivering diplomatic protests.We recommend that it put in place procedures under which all diplomatic protests to Spain about Gibraltar are delivered within a maximum of seven days.

SUMMONING THE AMBASSADOR

72. The UK has summoned the Spanish Ambassador to the UK to the Foreign Office five times in the last two years to protest over Gibraltar issues. The FCO described such summonses as "a particularly serious and exceptional step to take".[105]We asked the Foreign Office for a list of ambassadors it had publicly summoned, and it was striking to find that a strong European and NATO ally should be in the same group as Syria, Iran and North Korea. Only Syria has been summoned more times than Spain, and no other EU state has been subject to this extraordinary measure in the same time period:

73. It is hard to discern whether this high number of summonses is a positive signal that the FCO is taking robust action, or whether it is a sign that the measure is not workingandisrather seen in Spain as a mere slap on the wrist. We nonetheless consider that the Government is right to take exceptional measures such as summoning the ambassador in cases where there has been a breach of international law or particularly concerning incident related to Gibraltar. We recommend that if the situation does not show signs of improvement, the Government should re-assess its criteria for summoning the Spanish Ambassador and should consider doing so more frequently to reflect its ongoing concern about the unacceptable status quo.

Representation in the EU

74. Gibraltar has a unique position in the European Union: it has been in the EU since 1973 as part of the UK's membership so EU law is applicable to Gibraltar, though it is excluded from four major areas of EU policy (Customs Union, Common Commercial Policy, Common Agriculture Policy, Common Fisheries Policy and requirement to levy VAT). Although the Gibratlarian government is responsible for transposing EU law to apply in Gibraltar, the UK Government remains responsible for Gibraltar's external relations, including its representation in the European Union. David Lidington told the House in November 2013 that "The most important thing that we can do with fellow members of the European Union and other allied counties-indeed this is what we have been seeking to do-is draw their attention to the fact that Gibraltar is not some exploited colony: it is a self governing territory whose people have time and again freely expressed their wish to remain under the sovereignty of the United Kingdom."[106]FCO official Jill Morris told us that the UK's Permanent Representation in Brussels is "continually lobbying the Commission and explaining the situation" with regard to Gibraltar's sovereignty.[107]The FCO has also stated that it has been in "frequent contact" with the Commission regarding border delays in particular, and it has discussed these at a Ministerial level as well as the senior official level.[108]

75. Gibraltar has complained in the past that UK civil servants or diplomats in Brussels are not sufficiently aware of Gibraltarian issues, and do not consult Gibraltar until a late stage (if at all).Mr Picardo stated:

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However, Mr Picardo said that Gibraltar understood the need for it to develop its own expertise as well, and consequently it had invested heavily in its Europe department.

76. This understanding came about in part due to a recent significant failing in the UK's protection of Gibraltar and promotion of its interests. As noted in paragraph 70 above, in 2009-10 the UK Government failed to realise that Spain had applied to the European Commission for it to designate almost all of BGTW as a Site of Community Interest (SCI). The FCO states that the application was conveyed to the UK among hundreds of other routine applications, and the Commission did not alert the UK to the overlap with its territorial interests, as the UK expected it would. The UK therefore did not take its opportunity to object to this proposed designation, which was duly agreed in 2010. By the time the UK realised its mistake, it was too late to reverse the process. [A timeline with details of this incident can be found in Annex B]

77. The UK and Gibraltar both took the Commission to the European Court in 2010-12 to try to overturn the designation, but they lost the case. They nonetheless state that they do not recognise the designation, which they say has no legal force or consequence.[110] The UK insists that the designation does not constitute default recognition by the EU of Spanish sovereignty over the waters.Nonetheless, Spanish research vessels have used the designation of BGTW as an SCI as their justification for conducting incursions into BGTW, setting a dangerous precedent.

78. Mr Lidington told us that the awareness of "the Gibraltar angle" in the UK's work at the EU had improved over the last four years, adding:

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The Gibraltarian government has since announced plans to increase its presence in Brussels and in Washington DC, in order to ensure a higher profile for Gibraltar.[112]

79. The failure to prevent British Gibraltarian Territorial Waters from being designated a Site of Community Interest by Spain was a significant mistake which has proven impossible to reverse. The FCO should set out the action it has taken since this incidentto ensure that Government departments consider Gibraltar, and Overseas Territories more generally, when representing the UK at EU level.

PROSPECTS FOR TAKING THE GIBRALTAR BORDER DISPUTE TO THE EUROPEAN COURT

80. The FCO told us that it had considered taking steps against Spain over the border dispute under Article 259 of the Treaty on the Functioning of the European Union. Article 259 allows for one member state to initiate proceedings against another member state for violation of EU obligations. Member States usually ask the European Commission to bring cases rather than initiating them themselves so this would be an unusual but not unprecedented measure to take; Article 259 has been used on six previous occasions by a member state to bring an action against another.

81. By imposing restrictions at the border, Spain may be considered to be in violation of the free movement of people, as well as the Schengen Borders Code. The Borders Code provides for the abolition of internal borders between signatory states, and a single set of rules for checks at "external borders". According to the Code, EU citizens undergo a minimum check (a rapid and straightforward verification of identity) when crossing an external border, and checks should be "proportionate". Under these rules, the state is also responsible for ensuring "the safety and smooth flow of road traffic".[113]

82. Spain has already used Article 259 to bring a case relating to Gibraltar before the European Court, when it brought a case against the UK in 2006 regarding the UK's provision of European Parliament elections voting rights to the citizens of Gibraltar. Spain objected to the extension of voting rights to 'qualifying commonwealth citizens' who are not UK citizens and to the inclusion of Gibraltar within an existing electoral region in England. The action was dismissed by the Court on both counts, ruling that no EU legislation had been infringed. Unusually, the European Commission decided not to issue a reasoned opinion due to the political sensitivities involved.

83. Mr Lidington repeatedly highlighted to us the Government's hopes that the ongoing European Commission investigation into Gibraltar's border problems will secure some improvement to the situation. However, he confirmed that the UK did not rule out the possibility of legal action in the EU courts if the Commission's investigation does not reach a satisfactory conclusion, though he warned that legal cases could take a long time to come to court, and:

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84. TheGovernment should keep the option of using Article 259 to take Spain to the European Court under review, pending the final results of the Commission's investigation into the situation at the border. If the situation at the border does not improve within the next six months then the UK should make it clear that it intends to begin legal proceedings against Spain under Article 259.

Representation at the UN

85. The greatest issue for Gibraltar at the United Nations is its enduring position on the UN list of Non-Self-Governing Territories.Our predecessor Committee's reports on Gibraltar all urge the UK to make progress in securing its removal, and the UK Government has made repeated attempts to secure its removal from the list. Mr Lidington told us that the UK had improved the awareness of Gibraltar in its own work at the UN in the last four years, as well as increasing its presence, stating:

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He added that the UK Government had to:

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86. The Government of Gibraltar itself has been active in efforts to remove Gibraltar from the list. Most recently, in May 2014, Minister Joe Bossano told the United Nations Special Committee that Spain was running a campaign to deprive Gibraltar of its right to self-determination, based on arguments identical to those the fascist government in Spain had held decades ago. He urged the Committee to consider Gibraltar as a colonial people with their own constitution and a separate cultural identity to that of the rest of the UK, with the right to exercise self-determination and to choose for themselves.[117] In June 2014, Chief Minister Fabian Picardo repeated this message in an address to the United Nations Special Committee on Decolonisation, when he complained that Gibraltar was met with "deafening silence" from the Committee.[118]The Government should robustly oppose continued attempts by Spain to use international institutions as a means of securing international support for its case. We again urge the Government to take steps to remove Gibraltar from the UN list of non-self-governing territories. The Government should set out in its response to this report what action it is taking in order to do this.

Alternative means of applying diplomatic pressure

87. Some observers have suggested that the UK should make more use ofopportunities to impede Spain from achieving international goals as a wayto demonstrate the costs of its actions againstGibraltar. For example, SirGraham Watson, then MEP for Gibraltar, was recently reported as having said that during the border troubles in 2013, the UK Government drew up a list of thing it could do to retaliate. He reportedly claimed that as part of this, Prime Minister David Cameron warned Spain that the UK would block its bid for the 2020 Olympic Games (later won by Tokyo).[119]However, this report was denied by the UK Government, which said "as has always been the practice, the UK Government did not favour any of the three finalists over the others and there was absolutely no attempt to influence the bids."[120] Similarly, when we asked David Lidington if the UK Government would consider withholding UK support for Spain's current bid to join the UN Security Council, he told us that the UK had a "longstanding policy of not revealing its voting intentions in UN Security Council elections" and that the Government "carefully consider[s] all bids on their merits, taking into account candidates contributions to the Security Council and to the United Nations more broadly."[121]The Government should seek to identify areas of non-essential cooperation and occasions on which British assistance would be helpful to Spain (for example, Spain's bid for membership of the UN Security Council) and make the UK's support dependent on improvements to the situation in Gibraltar.

Royal Navy and military presence

88. The Royal Navy maintains a small operational front line squadron in Gibraltar to contribute to its maritime defence and security and, where necessary, the prosecution of offensive maritime operations. The Government states that the Royal Navy upholds British sovereignty "by challenging all unlawful incursions by vessels of the Spanish state, through radio warnings and the close monitoring of all such vessels, until they leave British Gibraltarian Territorial Waters.[122] Royal Navy vessels 'shadow' vessels performing incursions until they leave, and there have been recent reports in the press of using helicopters low over vessels performing incursions to incite them to leave.

89. Gibraltar also acts as a naval base for ships and submarines en route to and from deployments in the Gulf or Africa, and receives regular visits from British and NATO ships each year.Mr Picardo has repeatedly stated that an increased military presence in Gibraltar would provide reassurance to Gibraltarians as well as an important deterrent effect. He told us that

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The Government has so far resisted calls to station larger naval vessels permanently in Gibraltar, though in February 2014 it deployed additional personnel to Gibraltar to enhance the response capability and resilience of the Royal Navy Gibraltar Squadron.[124] The Government has also repeated that Royal Navy warships will continue to call regularly at the Rock, reflecting its utility as a permanent joint operating base.In the course of this inquiry, we have noted that a considerable number of Royal Navy vessels have visited Gibraltar over the last few months, including HMS Somerset in January 2014 and HMS Diamond in February 2014. While in Gibraltar, we were able to appreciate the conspicuous reassurance such vessels provide to a population that regularly witnesses illegal incursions by foreign vessels.We commend the Government's policy of choosing to use Gibraltar as a stop off point for naval vessels in transit as a sensible and effective measure.

NATO RESTRICTIONS

90. Despite being a full NATO partner alongside the UK, Spain continues to refuse to allow direct military movements or communications between Gibraltar and Spain. NATO Standardised Agreement (STANAG) 1100 sets out the arrangements for transits to NATO ports and naval ships of NATO members. In 1989, Spain inserted a reservation to prevent visits by NATO ships to or from Gibraltar directly from Spanish ports. Similarly, the UK Government has confirmed that any request by military aircraft from NATO (or other) nations to overfly or land in Spain, which has Gibraltar as a departure or arrival airfield is also routinely denied by Spanish authorities, though the Spanish authorities are "swift and cooperative" in allowing British military aircraft to pass through Spanish airspace to any other destination.[125]Spain also bans direct communication between the British Military in Gibraltar and the Spanish Armed Forces. Mr Picardo described the situation as "lamentable" and expressed confusion over the UK Government's lack of response:

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91. The ongoing restriction has been raised by our predecessor Committees in four previous reports on Gibraltar. On each occasion, the FCO has stated that it agrees that the restriction is unacceptable and efforts to overturn it were ongoing.[127]In April 2014, the Foreign Secretary told usthat the FCO was "not passive on these issues".[128] However, when we questioned Mr Lidington in April 2014 about Spain's continued imposition of restrictions, hesaid that the UK simply worked around it:

We do not think that raising this at NATO is going to be the appropriate way forward. Precisely because this has been a long-standing, very regrettable practice by Spain, this is not getting in the way of sensible, practical, NATO operational planning.

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Mr Lidington also noted that other NATO allies—including Canada, the US and Norway last year—regularly use Gibraltar for operational reasons. He concluded: "I think this is a practice by Spain that we regard as an irritant. It is bad practice, but it is not getting in the way of proper operational planning or activity."[130]In a later letter, Mr Lidington added that "we do regularly make clear to Spain that this is not the sort of impediment that close allies should have to manage." However, he said the UK addressed the issue at a bilateral level and did not raise it at the NATO Council or other NATO bodies,stating "This is in line with the policy of this and previous governments that NATO is not the appropriate forum for pursuing bilateral disputes."[131]

92. The arrangement has been criticised by some observers from NATO ally countries: a recent report by the conservative US based think tank the Heritage Foundation criticised Spain for continuing to allow Russia to use its port in Ceuta, one of its two territories in North Africa, at the time of the Ukraine crisis. The report noted the continuing restriction on NATO vessels travelling to or from Gibraltar, and concluded that "Spain's policy off allowing the Russian navy to use Ceuta in North Africa is also hypocritical in relation to its reluctance to allow visits from NATO ships to or from the British Overseas Territory of Gibraltar directly to or from Spanish ports. Therefore, under certain circumstances Spain would rather have a Russian ship visit a Spanish port than a NATO ship".[132]

93. We were also concerned to hear that a Norwegian research vessel had been refused entry to Las Palmas in September 2013 because its last port of call had been Gibraltar. When we pressed the UK Government to explain this case, involving a private vessel, it told us that Spanish law considers all research vessels to be state vessels, even if commercially owned, so this was "in line with existing restrictions" and did not represent a further extension of Spain's NATO reservation.[133]

94. We are disappointed that so little progress has been made in the last 16 yearstoward lifting Spain's NATO reservation against ships travelling between Spanish and Gibraltarian ports. The UK should actively seek for Spain's NATO reservation on Gibraltar to be overturned and set out in its response to this report how it intends to do so. The Government should also set out any steps it has taken to solicit support from other NATO partners who are inconvenienced in operational matters by Spain's restriction on Gibraltar.

80 Eleventh Report of Session 2001-02, Gibraltar, HC 973, para 25 Back

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82 HL Deb, 16 July 2012, Cols 6-7 Back

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85 HC Deb, 11 June 2012, col 230W see also HC Deb, 6 February 2012, col 52W Back

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