House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Eleventh Report

The negotiations with Spain

Joint sovereignty—a done deal or a dead duck?

4. 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.[2]

5. 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.[3]

6. 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.[5]

7. 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.[6]

8. 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."

9. 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."[7] We stated as much in our previous Report,[8]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.[9]

10. 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.[10]

11. 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;[11] the Spanish Foreign Minister has claimed that she has been assured that the Brussels Process talks are still on;[12] and recent replies to Parliamentary Questions by FCO Ministers suggest that the joint sovereignty deal remains on the table.[13]

12. 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…"[14]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.

Two flags, three voices

13. One of the central issues at stake in discussions on the future of Gibraltar has been the role to be played in talks under the Brussels Process by the Government of Gibraltar. The formula 'two flags, three voices' has been used to describe the arrangement whereby the Government of Gibraltar may attend the discussions as a part of the United Kingdom team, but contributing its distinctive voice, representing the particular interests of Gibraltar. Disagreement has centred on whether the talks should be held on the basis that the consent of all three voices should be required for any proposal to be adopted—sometimes referred to as a Gibraltar Government "veto"; or whether the two flags (i.e., the Spanish and British Governments) should be able to agree proposals notwithstanding a lack of assent by the Government of Gibraltar, with any proposal affecting the sovereignty of Gibraltar being put to its people in a subsequent referendum. In the event, it was the latter position which was adopted by the Government in the Brussels Process talks of 2002.

14. When considering this issue in our previous Report, we concluded that

… it was politically impossible for the Gibraltar Government to participate in the Brussels Process talks without also having the power to limit the outcome of those talks.[15]

The FCO responded that

… the Government made clear that it wanted the involvement of the Government of Gibraltar in the Brussels Process talks from the start so that they could help shape the outcome. For that reason, it was made clear to the Chief Minister that he would be consulted throughout the process; he could be present at all Brussels Process meetings under the two flags, three voices format (a seat at the table alongside the Foreign Secretary as part of the British Delegation, with the right to speak on any issue); he should not have to declare his final opinion on the package until the negotiations were complete; and at all times the 1969 Constitutional commitment remained, guaranteeing that there would be no change in the sovereignty of Gibraltar without the consent of the people of Gibraltar.[16]

15. The Chief Minister of the Government of Gibraltar told us that previous Foreign Secretaries had taken a different line on talks. Both Mr Straw's immediate predecessors had, said Mr Caruana, promised the Government of Gibraltar that the British Government would not agree to any new arrangements involving Gibraltar discussed at such meetings without the specific endorsement of the Government of Gibraltar.[17] Mr Caruana's recollection was confirmed for us by one of those Foreign Secretaries, Sir Malcolm Rifkind.[18] Mr Caruana also supplied us with copies of the correspondence,[19] from which we note that neither Sir Malcolm nor his successor, Robin Cook, accepted that Gibraltar should have a 'voice' at the talks. The "endorsement" which each of them was prepared to seek was to have been made outside the talks themselves, as part of an arrangement between the United Kingdom and Gibraltar Governments, without the involvement of the Spanish Government. What Mr Straw offered thus represented both an advance on and a retreat from that position: a voice, but not a veto.

16. Last year, we called on the Government to

… explain whether previous Governments had, as it appears from the evidence, made a commitment to the Gibraltar Government to seek the Chief Minister's specific endorsement before entering into any new arrangements affecting Gibraltar at the Brussels Process talks, and, if this is indeed the case, why the current Government decided not to renew that commitment.[20]

17. The Government responded that

It is not for this Government to explain the actions of its predecessors. When talks were relaunched in 2001, the present Government made clear that we wanted the participation of the Chief Minister. We believe that the arrangements put in place[21] would have satisfied his legitimate concern to participate in safety and dignity. The Chief Minister, as he makes clear in his own memorandum to the Committee,[22] did not feel that these arrangements satisfied his concerns and he insisted on an explicit veto over every issue discussed at the talks. As the Foreign Secretary said to the Committee in evidence on 19 June, it would not have been possible to enter negotiations on that basis.[23]

18. This response fails to explain why the Government changed its stance after December 1997, when Robin Cook wrote to Mr Caruana assuring him that "I will not agree to any new arrangements on any matter involving Gibraltar at the talks without your specific endorsement."[24] The Secretary of State told us last year that the Government of Gibraltar was seeking "some kind of complete veto over the final outcome of any negotiations between three parties."[25] This does not strike us as unreasonable. Both Spain and the United Kingdom had available to them a "complete veto", by virtue of their ability to withhold their agreement. Why the third participant in the talks should not have been offered a similar 'veto' has not been satisfactorily explained.

19. In the absence of an explanation, we postulate three theories:

· that the Government attempted to persuade the Spanish side to accept that the Government of Gibraltar should have a 'veto', but failed to secure is agreement;

· that the Government genuinely believed that the two flags, three voices formula was a fair and reasonable basis on which to proceed, and did not press the Spanish side on the matter of a veto;

· that the Government did not wish the Government of Gibraltar to possess a veto, in case it used it.

20. The Chief Minister of the Government of Gibraltar has suggested that the last of these was the case, and that Mr Straw "resiled from" the position taken by his predecessors "because it would have prevented him from concluding the intended 'done deal' declaration of principles."[26]

21. We do not intend to speculate which—if any—of the theories we advance above may be correct; we would prefer the Government to explain its own actions. We recommend that the Government explain clearly and in full why it offered Gibraltar a voice in meetings under the Brussels process, but did not renew its previous undertaking not to agree to any new arrangements involving Gibraltar discussed at such meetings without the specific endorsement of the Government of Gibraltar.

22. In the expectation that talks with Spain on issues other than sovereignty should and will continue, we wish to set out our view of how they should be conducted. The Government came unstuck when it reached an understanding with Spain, which was subsequently rejected by the people of Gibraltar in a referendum organised by the Government of Gibraltar. There is no point in the Government repeating this mistake. We recommend that the Government invite the Government of Gibraltar to participate in any further talks on the future of Gibraltar, whether or not under the Brussels process, under the formula offered in 1997.

2 Eleventh Report from the Foreign Affairs Committee, Session 2001-02, Gibraltar, HC 973, para 31 Back

3 Cm 5714 Back

4 Eleventh Report from the Foreign Affairs Committee, Session 2001-02, Gibraltar, HC 973, para 17 Back

5 Eleventh Report from the Foreign Affairs Committee, Session 2001-02, Gibraltar, HC 973, para 52 Back

6 Cm 5714 Back

7 See, e.g., Daily Telegraph, 9 June 2003, "Britain abandons Gibraltar talks" and The Guardian, 9 June 2003, "Gibraltar talks have failed, UK tells Spain". Back

8 Eleventh Report from the Foreign Affairs Committee, Session 2001-02, Gibraltar, HC 973, para 17 Back

9 HC Deb, 11 June, col 670 Back

10 El Pais, 9 July 2003 Back

11 See, eg, Daily Telegraph, 20 June 2003 Back

12 See "Palacio Says Britain Has Said They Will continue Discussions over Gibraltar", Gibraltar News, 9 June 2003 Back

13 HC Deb, 17 June 2003, col 141W Back