Telephone links with Gibraltar

Among the petty restrictions imposed by Spain on Gibraltar has been a refusal to recognise its 350 international dialling code or to provide roaming arrangements for Gibraltar mobile telephones, and a limit on the number of Spanish telephone lines available to residents and businesses on the Rock. Talks over many years have failed to persuade the Spanish side to remove these restrictions, and the European Commission has been notably uninterested in dealing with what we believe is a clear breach of EU competition law.

In our previous Report, we recommended that:

… if no solution to the Gibraltar communications issue can be found through negotiation with Spain, the Government should refer the matter back to the European Commission and should be prepared if necessary to take it to the European Court.

The Government responded that:

The EC Treaty confers primary responsibility for the enforcement of Community Law on the Commission. Two Gibraltar telephone companies have launched competition complaints against Spain over its refusal to recognise the +350 code and to allow Spanish operators to conclude mobile roaming agreements with them. These are private complaints which HMG has supported in its dealing with the Commission.

We also recommended that:

… in the absence of further progress on telecommunications access with Spain in the near future, the British Government should explore with Gibraltar the possibility of enabling access to Gibraltar telephone lines via the British numbering plan and dialling code as well as via Gibraltar's international dialling code.

The FCO's response was:

The Government remains in regular contact with the Government of Gibraltar, the Gibraltar Regulator and Gib Telecom on this issue. Our overall objective remains Spanish recognition of Gibraltar's international dialling code +350, which would solve all Gibraltar's principal telecommunications problems. We are, of course, especially interested in the Government of Gibraltar's ideas for the way forward.

These responses do not suggest there is any sense of urgency on the part of the Government about dealing with the Gibraltar telecommunications problem. The Government is content to leave it to private companies to pursue the legal case with the Commission to take action; it has no new proposal of its own to resolve the issue; but it is "especially interested" in any proposals which the Government of Gibraltar may make.

In his comments on the Government's Response, the Chief Minister of the Government of Gibraltar had no fresh proposals to make. Mr Caruana "does not agree that dialogue is the only way to resolve such problems. These are matters of international legal rights and obligations and are therefore enforceable judicially." It appears that the Government of Gibraltar is placing all its hopes for a resolution of this issue in the legal action which is currently under way. We suggest that it needs to think about what it will do if the action either fails or drags on for years.

We remain of the view that the proposal which we advanced in our previous Report, of using United Kingdom dialling codes for calls from Spain to Gibraltar, deserves serious consideration. However, neither the British nor the Gibraltar Governments has betrayed any enthusiasm for this solution. The FCO ignored it completely in its response; and the Chief Minister failed to comment on it also, although we are aware that he has previously objected to such a scheme "for political reasons." We recommend that the Government set out in clear terms in its Response to this Report its policy on using United Kingdom telephone numbers for lines in Gibraltar.

Air links

Gibraltar's airport is located on the disputed isthmus between the Rock and Spain. It is a joint military and civilian use facility, operated by the Ministry of Defence (MoD). MoD levies landing charges on aircraft using the airport at a rate five times of that which applies at the nearest Spanish airport, Malaga.

Last year, we called on the Government to:

… reexamine its landing charges for commercial aircraft at Gibraltar airport to ensure that they do not exceed the real cost of allowing commercial operations to take place. We further recommend that the Government should assess whether reducing the landing charges would encourage greater commercial use of the airport, thereby ensuring that current revenues are maintained.

The FCO replied that:

Gibraltar airport is a Ministry of Defence (MoD) airfield with facilities for commercial airlines. Landing fees are a matter for MoD who are responsible for the airfield. The costs of running the airfield are borne by the MoD and landing fees do not meet the full resource costs of facilities and services; in effect, the commercial users are being subsidised by the UK taxpayer. Commercial operators utilise the airfield out of duty hours and MoD incurs additional costs to provide essential support services to enable use of the airfield. The MoD will continue to keep the charging issue under review.

We wrote to MoD, asking for further details of this review. MoD had little to add:

MoD's review is examining the possibility that reducing the landing charges would encourage greater commercial use of Gibraltar Airport, thereby ensuring that current revenues are maintained.

Since we received that reply, there have been press reports in Gibraltar that MoD and the Government of Gibraltar have held talks on airport landing fees. We welcome this development.

We recommend that the Government urgently complete its review of landing charges at Gibraltar Airport—and announce the results—as soon as may be practicable.

Representation in the European Parliament

Following a 1999 ruling by the European Court of Human Rights, the United Kingdom has been under an obligation to allow electors in Gibraltar to participate in elections to the European Parliament. In 2001, the then Minister for Europe, Peter Hain, announced in evidence to this Committee that the Government would legislate to this effect.[35] The Bill to achieve this has now completed its passage through Parliament;[36] a consultation paper has been published as part of the process of deciding which constituency Gibraltar will be part of;[37] and Gibraltarians will be able to vote in the 2004 elections to the European Parliament.

In our previous Report, we welcomed the Government's action. Only one aspect of it caused us concern. This was Mr Hain's statement to us that "Spain has dropped its opposition… That is why we have been able to proceed."[38] We could not understand how Spain's opposition could have prevented the Government from implementing a judgment of the European Court. We therefore recommended that:

the Government… explain what measures any European Union member state could take to obstruct unilateral action by the United Kingdom to enfranchise the Gibraltar electorate.

The response to this was: The Government is under legal obligation to give effect to the 1999 ECHR ruling in Matthews v UK. We would have preferred to do this by amending the 1976 EC Act, but were unable to secure the necessary unanimous agreement of the Council. The Government therefore decided in November 2001 to enfranchise Gibraltar by domestic legislation. The Government is aware of the possibility of a case being brought against this unilateral action, but considers its introduction of the domestic legislation to be fully in accordance with the principles of EC law. The Council has already taken note of the UK's decision to take this course.

This response failed to supply the information we sought. However, there have since been indications of a new development. On 3 June 2003 reports suggested that Spain had instituted proceedings under Article 227 by lodging a formal notice of action at the European Court of Justice.[41] While no action has yet been brought,[42] such a step would be highly unusual, as—ironically—the FCO told us in response to our Sixth Report of 2000-01:

Article 227 of the EC Treaty permits a Member State, which considers that another Member State has failed to fulfil an obligation, to bring the matter before the European Court of Justice. However, under the EC Treaty the European Commission has primary responsibility for ensuring that Community law is applied, so Article 227 is invoked only very rarely.

Until an Article 227 action is brought, it will not be clear on exactly what grounds Spain is objecting to the Government's enfranchisement of the people of Gibraltar. This may be sabre-rattling, or it may be a serious attempt to interfere in the democratic process. It is possible that an action of this type was what the Government had in mind when it alluded to Spain's previous "opposition" to the proposal. We recommend that the Government explain how Spain's apparent opposition to enfranchisement of the Gibraltar electorate in respect of elections to the European Parliament prevented the Government from implementing the judgment of the European Court of Human Rights in the first place; and what it understands to be the grounds on which Spain is now threatening to take action against the enfranchisement process under Article 227.

The Convention on the Future of Europe

Gibraltar is in the European Union, yet has no direct representation in its Councils or in its Parliament. Part of that shortcoming is, as we have just noted, about to be dealt with by incorporating Gibraltar within a United Kingdom European Parliament Constituency. Gibraltarians will be able to vote in a European Parliamentary election for the first time in 2004, at the same time as the EU is enlarged to 25 states and a new constitution is adopted.

That new constitution has been developed by the Convention on the Future of Europe, on which the United Kingdom was represented by the Secretary of State for Wales—and former Europe Minister—Peter Hain, two Members of the House of Commons,[44] two Members of the House of Lords,[45] and two Members of the European Parliament.

In due course, the Convention's proposals will be considered by an Inter-Governmental Conference (IGC) of member states. Gibraltar is not a member state, and will not be represented. Gibraltar does, however, have an interest in the outcome of the IGC. And as the sovereign power, the United Kingdom is responsible for representing Gibraltar's interests in such a forum.

We are concerned about the implications of the IGC for the continued ability of the United Kingdom to deal with Gibraltar and other overseas territories on a bilateral basis. It would not, in our view, be acceptable for the United Kingdom's relations with those territories to be governed by EU law.

We recommend that the Government set out in its response to this Report: (a) the implications for Gibraltar of the proposals contained in the draft Constitution published by the Convention; (b) how it intends to represent the interests of Gibraltar at the forthcoming Inter-Governmental Conference; and (c) how it will ensure that the United Kingdom's freedom to pursue bilateral relations with Gibraltar—and with the overseas territories generally—in its and their best interests is not compromised by decisions taken at the IGC.

The Commissioner of Police and the Governor cannot authorise unlawful acts, says Judge

I do not want to leave the issue of illegality for, without considering the position in Gibraltar of the police in the course of this unlawful money laundering operation, the police were also acting unlawfully in Gibraltar. The Commi-ssioner of Police had no power in Gibr-altan to authorise the Gibra-ltar Police, let alone a foreign force, to act unla-wfully within that territory. Just as the Commissioner of Police cannot do so, so also the Governor of Gibraltar cannot authorise the carrying out of unlawful acts within the territory. The Governor of a dependent territory derives his authority from the Crown. He must comply with Royal instructions given under the sign manual and signet. He must comply with instructions given by the Secretary of State for Foreign and Commonwealth Affairs as spokesman for the Crown provided that such instructions are consistent with the Constitution and other laws of the territory of which he is gove-rnor. I have seen very little material as to what either the Foreign and Comm-onwealth Office or the Gove-rnor of Gibraltar were told.

On 26th November 1993 there is a telegram to the Deputy Governor from the then Foreign Secretary. Apart from the misleading information as to what Mr Finch had agreed to do, it does no more than tell him the nature of the undercover operation and the fact that undercover officers are visiting Gibraltar. On 21st April 1995 there is a further communications from the then Foreign Secretary to the Governor outlining what had happened on 26th January 1995 and 20th March 1995 over the deposits which Mr Finch had made with Ocean Park Investments. This is preceded by two Foreign and Commonwealth Office minutes of 29th March and 6th April 1995 which really cover the same ground. The two telegrams do no more than provide information to the Governor. The Foreign and Commonwealth Office clearly considered no more was nece-ssary. At no point is the fact that the police were acting illegally addressed. Mr Giles says that he made a number of oral rep-orts to the Foreign and Common-wealth Office. He may well have done, but there are no minutes as to what was said and no action seems to have been taken to let the Governor or the Gibraltan Police Commissioner know what was going on until about June 1997 when Mr Fry spoke to Mr Castree.

In the light of the authorities which I have cited, I cannot accept that it is open to the police to mount a wholly illegal operation, both in this country and abroad, going far beyond the storefront type of operation accepted by the Court of Appeal in R-v-Christou and Wright, where the police operated within the law, for the purposes of attracting criminals to use its resources. In the result, œ15 mil-lion is handed back to the sus-pects and, such was the police distrust of the Gibra-ltan Pol-ice, that no one knows what happened to that money. In two or three instances only was it possible to mount an investigation independently of the undercover officers in OPI and these operations have led to successful prosecutions.

The United Kingdom as Gibraltar's advocate in the world

As a British Overseas Territory, Gibraltar is not a nation state. It is not a member of the United Nations; neither is it an EU member state. In these and in other international fora, Gibraltar's interests are represented by the United Kingdom. British Government Ministers—and the United Kingdom Parliament—therefore have a particular responsibility towards the people of Gibraltar. We on the Foreign Affairs Committee readily accept this responsibility.

In successive Reports, we have drawn attention to failures by the United Kingdom adequately to meet that responsibility, for example by failing to rebut some of Spain's unfounded allegations against Gibraltar. Our concern was all the greater when, in the course of our last inquiry, the Secretary of State accused the Government of Gibraltar of failing to publish its national income accounts.

We concluded in our previous Report that:

… by publicly questioning the probity of the Gibraltar Government during the course of the relaunched Brussels Process talks, the British Government has unwisely increased tension and suspicion of its motives within Gibraltar.

The Government's response was that it has:

… consistently made clear the importance it places on good governance in all our Overseas Territories. Pursuit of this objective is in the interests of Gibraltar as well as HMG.

The response did not address the point. We went on to conclude that:

… it is highly ironic that the British Government has given credence to complaints by Spain about law enforcement and the supervision of financial services in Gibraltar, given that these areas are the responsibility, not of the Gibraltar Government, but of the British Government and of the Financial Services Commission appointed by it.

The Government responded that:

This conclusion is based on a misunderstanding about the role of HMG in the public administration of Gibraltar. In practice, Gibraltar has a significant degree of responsibility within these areas. In the case of financial services, the Gibraltar Financial Services Commission is charged with the responsibility of supervising institutions carrying on financial business in or from within Gibraltar. The Commission, while appointed by the Governor with the approval of the Secretary of State, is an independent body. While no-one can afford to be complacent, it is the Government's view that the Gibraltar finance industry is properly regulated.

The Committee did not misunderstand the role of HMG in the public administration of Gibraltar. The Governor, not the Government of Gibraltar, appoints the Financial Services Commission, with the approval of the Secretary of State, not that of the Chief Minister. The situation is exactly as stated in our previous Report, that the British Government and the Commission appointed by it have responsibility for financial regulation in Gibraltar, while the British Government and the Royal Gibraltar Police, whose Commissioner it appoints, have responsibility for law enforcement. It is disingenuous of the Government to claim otherwise.

There is now a new Governor in Gibraltar who, we trust, will do all in his power both to ensure that the Government of Gibraltar continues to fulfil its obligations, and that the British Government represents the interests of Gibraltar on the international stage. We were heartened that, even before the arrival of the new Governor, a robust stance was taken against groundless allegations by Spain's EU Transport Commissioner concerning the wreck of the MV Prestige last November off the coast off Galicia. We conclude that there are positive indications that the British Government is now sticking up for Gibraltar, and is no longer prepared to allow unjustified allegations to go unchallenged. We recommend that the Government adopt this practice as a matter of policy.

Joint sovereignty - a done deal or a dead duck?

In our Eleventh Report of last Session-referred to from now on as the 'previous Report'-we concluded that the Government was wrong to negotiate joint sovereignty, when it must have known that there was no prospect whatsoever that any agreement on the future of Gibraltar which included joint sovereignty could be made acceptable to the people of Gibraltar, and when the outcome is likely to be the worst of all worlds-the dashing of raised expectations in Spain, and a complete loss of trust in the British Government by the people of Gibraltar.

The Government replied: We do not agree. The Government's objective has always been to reach an agreement that it could commend to the people of Gibraltar; an agreement that offered the prospect of a secure, stable and prosperous future for Gibraltarians. As was recognised by Baroness Thatcher and Lord Howe in 1984, any negotiations to that end would need to tackle the issue of sovereignty. But, as the Foreign Secretary made clear in his 12 July statement, the sovereignty issue would only form one part of any agreement. Other principles-such as more internal self-government, the retention of British traditions, customs and way of life, the retention of British nationality, the freedom to retain institutions that the people of Gibraltar might want-would also form part of the agreement we have been discussing with Spain. As the Foreign Secretary made clear to the House on 12 July, if and when we were able to reach agreement with Spain on such a framework, we would publish it in a joint declaration-a statement of intent by the two Governments. Thereafter, in the second phase, there would be further detailed negotiations-in which the Government of Gibraltar would again be invited to participate fully-to produce a comprehensive package, including a new draft treaty, based on the principles set out in the joint declaration. The United Kingdom would ratify such a treaty only after securing the consent of the Gibraltarians in a referendum. The Government believes that further dialogue is needed with Spain and with Gibraltar if progress is to be made.

The FCO apparently believes that, notwithstanding the expressed view against the principles embodied in the Anglo-Spanish deal of almost 99 per cent of the Gibraltarian electorate in a referendum declared to be fair by United Kingdom Members of Parliament and other neutral observers, "further dialogue... with Spain and Gibraltar" will produce "progress." We disagree. As we stated in our previous Report,[4] we see no prospect of the people of Gibraltar agreeing to joint sovereignty. That is why, in paragraph 52 of our previous Report, we concluded that the British Government now faces an unenviable choice. On the one hand, it can continue to negotiate on the issue of joint sovereignty and reach a bilateral agreement with Spain which may be in the wider British interest, but which will not be acceptable to the Government or people of Gibraltar. On the other hand, it can withdraw its joint sovereignty proposal-with the risk that Spain will react negatively, both bilaterally and against Gibraltar-re-establish trust and good relations with the Government and people of Gibraltar, encourage Spain to do the same, and only then attempt to negotiate an agreement with Spain, with a representative of Gibraltar participating as a full negotiating party (whether under the British flag or not). We further conclude that this dilemma is entirely of the Government's own making.

The FCO replied that the Government's position remains as set out by the Secretary of State to Parliament on 12 July. It continues to believe that a process of discussion with Spain and with the people of Gibraltar is right because it is in the interests of people in Gibraltar, in the United Kingdom and in Spain. There remain real issues which have to be discussed with both. Whether those discussions take place next week, next month, or next year, it is clear that the issues are not going to go away. We would do no one a service by ignoring them or simply hoping that they will disappear.

Spain is a close ally of the United Kingdom, as it proved during the Iraq crisis. It has a legitimate interest in Gibraltar, and we entirely accept that there are "real issues which... are not going to go away." We do not suggest they should be ignored, and we do not believe they will simply disappear. But the people of Gibraltar are not going to go away, and their expressed view that joint sovereignty is not a solution to the real issues cannot be ignored. The Government did itself no good at all by hoping that the people of Gibraltar would change their mind, when it was clear they would not. For as long as the Government refused to abandon the joint sovereignty proposal, the people of Gibraltar continued to believe that it represented, in the words of their Chief Minister, a "done deal."

We were interested, therefore, to read the recent remarks of the Minister for Europe, Dr MacShane, in interviews with the Spanish dailies El Pais and El Mundo, acknowledging that a "long period of calm and friendly relations with Spain"-perhaps as long as 30 years-is required before any change in the status of Gibraltar is likely to be acceptable to its people, and that at the moment the chances of a deal are "simply zero." We stated as much in our previous Report, and we are pleased to note that the Prime Minister has endorsed Dr MacShane's remarks:

The Minister certainly did speak for the Government. However, what he actually said was that there could be no question of any deal going through without the consent of the people of Gibraltar. We have always made that clear. That remains the position. I have said it myself, and the Minister for Europe said it too.

More recently, the Prime Minister went further, by giving an interview to El Pais in which he said:

Well I support very much the process of dialogue that we have engaged in, and we have got to carry on talking. Look, a resolution of this issue is in your interest, our interest and in the interests of the people in Gibraltar. The only thing that everyone always has to understand is that there is a resolution of the British House of Commons that any constitutional change can only be done with the consent of the people of Gibraltar. And I can tell you quite frankly, even if I wanted to-which I don't-but even if I did, you could not alter that resolution of the British House of Commons. ... And the British relationship with Spain is immensely important today. It would be absurd for us to have that relationship governed by disagreement over Gibraltar. Now obviously the Spanish government has a very strong position on it and it makes that position very clear to us, and that is why I think it is important that we carry on working on this and trying to achieve a solution, but recognise it should not be the totality of British-Spanish relations, because that would be just not to be living frankly in the 21st century. 

It would appear from all this that the joint sovereignty talks have been shelved. However, Prime Minister Aznar is reported to have asked for the assistance of President Bush in pursuing Spain's continuing interest in the issue; the Spanish Foreign Minister has claimed that she has been assured that the Brussels Process talks are still on; and recent replies to Parliamentary Questions by FCO Ministers suggest that the joint sovereignty deal remains on the table.

There is now an unresolved tension between the Minister for Europe's remarks that the chances of a deal are "simply zero"; and the Prime Minister's Delphic reference to "trying to achieve a solution", as well as the Government's restatement of the Secretary of State's July 2002 position that the United Kingdom and Spain "are in broad agreement on many of the principles that should underpin a lasting settlement. They include the principle that Britain and Spain should share sovereignty over Gibraltar...".

This tension must be resolved. In our view, the reality is that the joint sovereignty deal is not only wrong in principle, it is simply unenforceable. The Government should recognise explicitly that the deal is dead, and should arrange for it a speedy burial. We recommend that the FCO withdraw its unacceptable joint sovereignty proposal, and then get on establishing normal and co-operative relations between Spain and Gibraltar as should be the case between member states of the European Union and their dependent territories.

On a day like today...


On a day like today 299 years ago, Gibraltar ceased to be Spanish - and the Gibraltarians were born!

My dear, que solemne te has puesto, although on second thoughts it must be said that the anniversary is that important. Digo que si. And this time next year estaremos echando los fireworks to mark the 300th anniversary. and why not? Not only that, pero en San Roque 'where the people of Gibraltar reside', quieren celebrar the 300th anniversary of their being a town.

More so why we should be entitled also to celebrate the birth of our Gibraltar, y si no le gusta a Miss Palace que se valla dc holiday a Perejil.

Claro. We are what we are and what we are we have to celebrate, y espero que venga Isabelita porque she is our Queen.

Es que los del Foreign Office no se acaban entera just how mistaken all their policies on Gibraltar are and have been, that is why nos encontramos en este lio.

Eso es lo que dice mi grandfather, el que vive en la cuesta de Mister Bourne.

My dear, eso suena at secret service, aunque si todos los secret agents son tan guapo como 007 Bond, we cannot stop el surrender.

My dear, mira Ia que tiene arma el Beckham en China, salieron detras de el a bevy of Chinese girls dressed as nurses and carrying gifts y eso que he is not a secret.

Again, los del Foreign Office metieron la pata con Hong Kong. They should have sent them Beckham y se hubiera arreglao todo.

Claro que si. Lo que no se arreglan son los power cuts in parts of Irish Town. They happen twice a week porque el Electricity Authority cannot maintain a constant power supply. My dear, en cualquier parte del mundo they would be sued and taken to court, aunque in this village we keep acting more and more as if we were a banana republic.

Pasa con todo, my dear, nos ponen scaffoldings por la cabeza y cualquier dia they injure someone. Y ya hablaremos de otros percanses, porque ahora con esta calor no tengo gana de usar my brain, which must be on holiday.

Pero no dijo el Chief Ministron que he would have no deals over his head - what about danger-deals over our heads con esos scaffoldings?

This town is ripe for the making of a big-scale comedy series, como esos que se yen on satellite TV, como Fawlty Towers y cosas de esa.

Oh well, ten cuidao con el heatwave que en Seville hasta estan muriendo gente. Mete los pie en remojo for if the flies. Y comprate un helicopter for travelling around, porque los roadworks no paran. Adios sufridora.

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