THE EU DIMENSION
59. Spanish membership of the EU has given Spain
an important arena in which it is able both to make accusations
against Gibraltar, and to manoeuvre against the interests of the
territory. Gibraltar is, of course, not a member of the EU but
is within the EU under Article 299(4) of the Treaty of Amsterdam
which applies the Treaty to "the European territories for
whose external relations a Member State is responsible."
Gibraltar has exemptions from Community policy in the Common Agriculture
and Fisheries Policies, the Common Customs tariff, the free movement
of goods (but not services) and the levying of VAT. The UK Government
has delegated to the Government of Gibraltar responsibility for
giving effect to EU legislation in the territory, but retains
ultimate responsibility for the application of EU law in Gibraltar.
Mr Caruana told us that Gibraltar accepted its EU responsibilities,
even where these resulted in onerous burdens being placed upon
the territory. At the same time, Gibraltar wished to benefit from
its full entitlement under EU law.
Non-implementation of EU directives
60. One theme of Spain's accusations has been that
Gibraltar has failed to implement EU legislation. In January 1999,
an official complaint was made by the Spanish Government to the
Commission in respect of 66 specified directives which Spain claimed
had not been brought into effect in Gibraltar.
On 11 February, the British Permanent Representative in Brussels
effectively rebutted this allegation: of the 66 directives, 39
had in fact been implemented, 12 were inapplicable because of
Gibraltar's legal status within the EU, two did not require transposition,
three were listed twice and two appeared not to exist. Of the
remaining eight directives, four have subsequently been transposed.
The four directives which are now outstanding from the list are
the four directives known collectively as the 4th and 7th Company
to which we referred earlier.
Despite the invalidity of the Spanish list, it would be wrong
to suggest that the picture is perfect. The British Government
told us that "there is still a number of directives which
were identified in 1994 which have not yet been transposed by
Gibraltar. Most of them are the subject of infractions proceedings."
There is also new legislation which Gibraltar is in the process
of bringing into force, but in this its position is similar to
that of other jurisdictions within the EU.
61. The British Government acknowledges that there
was a backlog in the implementation of EU law in the past, and
has put pressure on Gibraltar to comply with its EU obligations.
Ms Quin told us that the record in Gibraltar is now a good one,
and the Gibraltarian Government told us that the "reality
of the matter is that Gibraltar's EU directives transposition
record is now very good."
A Legislation Support Unit has been set up in Gibraltar, headed
by a senior lawyer with considerable drafting experience in the
British civil service. This Unit has the Herculean task of transposing
EU directives into Gibraltarian lawmany of which will have
precious little, if any, effect in so small a community. This
was a point made by Ms Quin.
The Gibraltar Government described a "massive (by reference
of our size) amount of financial, administrative and legislative
resources [devoted] to directives implementation,"
and, as the FCO put it, this places a "strain... on Gibraltar's
small public administration."
It is inevitable that there will be a strain on Gibraltar because
of Gibraltar's separate legal jurisdiction, coupled with its size
and its status as part of the EU. Nevertheless, we believe that
Gibraltar should be applauded for the commitment it has shown
to implementing EU directives promptly in its territory.
62. The attempt by Spain to allege a lawless attitude
in this area has been rebutted, but nevertheless erodes confidence
in Gibraltar among businesses and governments in the rest of Europe.
In any case, we note that Spain itself is subject to infringement
proceedings in 25 cases because of non-implementation of EU directives.
We believe that the message that Gibraltar does comply with
its EU obligations should be emphasised by the United Kingdom
Government to its EU partners. We further recommend that the British
Government request that the European Commission, as part of its
regular review of levels of compliance in EU Member States, assess
the compliance of Gibraltar with relevant EU obligations and publish
Non-recognition of documentation etc
63. There are many aspects to the principle of non-recognition
of Gibraltar as employed by Spain. For example, Señor Matutes
was reported as telling our sister Committee in Spain on 10 February
1999 that the Spanish Government was considering non-recognition
of Gibraltarian driving licences. He repeated this threat in a
television interview to Antena 3 on 1 March. Spanish objections
appear to centre on the designation "UK (Gibraltar)"
on the EU licence, which Spain regards as not complying with the
requirement that licences should contain the distinguishing sign
of the Member State which issued them. The British Government
has informed the Spanish Government that, in their view, non-recognition
would be contrary to EU law, and, in any case, if there is any
dispute about the validity of the licence, this is a matter for
the European Commission, not for unilateral action by Member States.
The British Government has also drawn the issue to the attention
of the Commission. According to the British Government, Señor
Matutes's threat has not been carried out, but the Government
of Gibraltar claimed that licences had not been recognised "in
a limited number of cases."
64. There is one area relating to driving licences
where Spain may have a legitimate grievance: prior to January
1997, Spaniards (and other EU nationals, including Britons) were
able to obtain Gibraltarian driving licences without establishing
residency requirements. In January 1997, Gibraltar came into line
with the rest of the EU and imposed residency requirements. However,
according to the FCO, "it seems that after January 1997 a
number of non-Gibraltarians made false declarations of residence
and received licences on that basis."
Procedures have since been tightened, at the prompting of the
British Government, and we understand that investigations are
proceeding into the scam which appears to have operated in the
past. It is clearly important for Gibraltar not to allow any laxity
in the enforcement of EU law in this fieldor any otherif
it wishes to demonstrate its credentials as a territory which
complies fully with its EU obligations.
PASSPORTS AND IDENTITY CARDS
65. A similar objection is made by Spain in respect
of passports which have the word "Gibraltar" on their
front cover. These are issued by the Governor in Gibraltar, but
are alleged not to conform to the 1980 intergovernmental resolution
on the EC Common Format Passports. The Spanish view is again contested
by the British Government.
According to the Government of Gibraltar, non-recognition of these
passports has occurred "in a number of cases."
66. Gibraltarians have also had identity cards since
1943. According to the Government of Gibraltar, their format was
modified to be brought in line with the EU standard, and the British
Government informed the Commission in May 1995 that the Gibraltarian
identity card was to be accepted under the terms of relevant EU
directives. This was accepted by the Commission, but "Spain
refused to accept the use of the Gibraltar card and requested
other Member States to follow."
According to the Gibraltar Socialist Labour Party and the Liberal
Party of Gibraltar, only Sweden and the United Kingdom recognise
The Gibraltar Government told us that Spain's action was taken
up with the EU Infraction Chefs Committee by the British Government
in October 1995. We are aware that these representations have
been repeated on several occasions at a very senior level. No
decision has yet come out from the Commission. We recommend
that the British Government should press the European Commission
strongly for early action and speedy resolution of the issues
involving non-recognition of driving licences, passports and identity
67. The Gibraltarian Government told us that it was
unable to comply with EU telephone liberalisation directives because
Spain refuses to recognise Gibraltar's international dialling
code, and will not allocate any more than 30,000 telephone numbers
on the Spanish system.
Spain has also prevented its mobile phone network from granting
roaming facilities for Gibraltar's mobile phone network. This
matter was taken up with the European Commission by two Gibraltarian
companies in 1996.
The British Government told us that it was for the Commission
to decide on such private complaints, but that they took an "active
interest" and have "urged the Commission to examine
carefully the arguments put forward by the complainants and to
find an early solution."
The non-resolution of this issue since 1996 is not acceptable,
and we recommend that the Government take all steps open to
it under the Treaties to ensure that a determination is made by
the European Commission with no further delay in the case of telephone
Non-recognition of authorities in Gibraltar
68. It is well precedented in European law for a
number of different competent authorities to be designated as
responsible for aspects of the implementation of the law in a
Member State. Authorities in Gibraltar have been so designated.
For example, social security regulations provided for the competent
authorities in respect of the United Kingdom to be the Secretaries
of State for Social Security, for Scotland and for Wales, the
Department of Health and Social Services for Northern Ireland,
and the Directors of the Departments of Labour and Social Security
and Medical and Public Heath in Gibraltar. (In respect of Portugal,
the same regulations provide for different competent authorities
in respect of the Azores and Madeira from those for metropolitan
Because of Gibraltar's separate legal jurisdiction, it is the
norm for Gibraltarian competent authorities to be designated if
any competent authority is needed. However, the Spanish Government
is, according to the Gibraltarian Government, seeking to prevent
the designation of Gibraltarian authorities "by insisting
that Gibraltar should become the political and administrative
responsibility of the appropriate UK domestic competent authority."
This is unacceptable to Gibraltar because it "would, in practice,
amount to administrative integration into the UK, without political
69. The Spanish policy to prevent the recognition
of Gibraltarian authorities can be exercised in two principal
ways. Where unanimity is required for the adoption of EU legislation
(or Spain is the "swing voter" under majority voting),
Spain can prevent legislation referring to Gibraltarian authorities
from being adopted unless Gibraltar is suspended or excluded from
the legislation. We deal with this issue in paragraphs 72 to 77
below. An alternative approach is to try to persuade other Member
States that designated Gibraltarian authorities ought not to be
recognised. This method has particularly been used against several
industries which are important for Gibraltar's economic future.
Thus, though the Gibraltar Financial Services Commission (FSC)
have been given permission to "passport" Gibraltar-based
insurance firms to operate throughout the EU,
"several EU partners have queried the status of the FSC,
while Spain has sought to lobby against acceptance of notifications
by the FSC."
The Government of Gibraltar believes that the refusal of other
states to recognise the FSC's notification was "largely the
result of Spain's lobbying."
The passporting of banking services is imminent,
but the same reaction to FSC passporting can be anticipated. Regulation
of investment services is less well advanced,
but eventually the same problem is likely to occur.
70. The Gibraltar Government also produced evidence
that Spain has attempted to dissuade shippers from flagging vessels
to the Gibraltar Register, despite the recognition of the Register
in British and in European law.
According to them, Spain has also objected to the nomination of
Gibraltar's companies registry as a competent authority for the
proposed Regulation to establish a European Company Statute.
71. The financial services and shipping industries
are all important to Gibraltar's future. We were left in no doubt
by both the Chamber of Commerce and by representatives of the
Gibraltar Government that the problems with passporting have had
a severe effect on the financial services industry. The British
Government has "consistently supported Gibraltar's efforts
to build up a thriving financial services sector as an economic
motor for the territory."
There is clearly a duty upon it to counter Spanish lobbying by
itself lobbying vigorously for Gibraltar's competent authorities
to be accepted by other Member States. The British Government
can also press the European Commission to work more urgently to
support the validity of the recognition of Gibraltarian authorities
under European law. It is intolerable for third parties to decide
which authorities are to be recognised within a Member State:
that is a matter for the Member State Government alone. There
may also be other steps which can be taken. The British Government
told us that, in the case of insurance, "the possibility
has been mooted of communicating with those insurance regulators
that refuse to deal direct via a London "post-box"."
This is obviously a practical, if second-best, way forward. However,
we understand from representatives of the Gibraltar Government
that discussions on the post-box idea have been in train for 18
months, with the main obstacle to progress being a requirement
from the British Government that the Gibraltarian Government provide
suitable indemnification. We recommend that the British Government
take speedy and practical steps to ensure that Gibraltarian financial
and other interests are not adversely affected by the non-recognition
of Gibraltarian competent authorities.
Exclusion of Gibraltar from EU Legislation
72. As we have mentioned, where EU legislation is
subject to unanimity (or in cases under qualified majority voting
where Spain is the "swing voter"), it is always possible
for Spain to create difficulties in respect of Gibraltar. This
may be done by attempting to exclude or suspend Gibraltar altogether,
as in aviation legislation, or by refusing to recognise Gibraltarian
competent authorities, as in the case of certain Third Pillar
matters, so de facto excluding Gibraltar. The Government
of Gibraltar referred us to three Third Pillar instruments (the
European Judicial Network, the EURODAC Convention
and the Driving Disqualification Convention) where they believed
that the UK abandoned its initial position that Spain could not
insist that Gibraltarian authorities must not be designated as
competent authorities under the instrument. They commented as
"it was in the light of this extraordinary concession
that Gibraltar was obliged to opt to be excluded from the measures
rather than be forced to participate through the UK's domestic
authorities and thereby surrender its jurisdictional status and
administrative autonomy and allow Spain to make deep inroads into
We raised the cases of the Driving Disqualification
Convention and of EURODAC with Ms Quin and her officials. We were
told that Gibraltar was excluded from EURODAC because the Gibraltar
Government preferred "to remain outside Third Pillar measures
rather than be included underneath the UK competent authority."
In the case of the Driving Disqualification Convention, the exclusion
of Gibraltar was accepted because it was felt that adoption of
the Convention was "in the interests of the United Kingdom
as a whole."
73. There are a number of possible responses which
the British Government could adopt to the threat of exclusion.
The firstof simple acquiescence to Spanish demandsis
unacceptable. It would, in effect, give Spain control over what
EU legislation applied in Gibraltar, and would turn Gibraltaras
opposition politicians in Gibraltar vividly described it to usinto
a Spanish colony. As their party's Memorandum put it
"in practice, Madrid, instead of London and Gibraltar, is
deciding which measures of European legislation apply in the British
territory and which do not."
74. The second possibility is to take a more robust
line with Spain, and to impose a British veto on any measure requiring
unanimity, or where the British vote is the swing vote, unless
any restrictions on Gibraltar which Spain proposes are removed.
The application of the legislation in question would be a matter
to be determined solely between the Government of the United Kingdom
and Gibraltar. There are many attractions in this absolutist approachand
it would be an approach which would be very popular in Gibraltar.
However, it will not always be right for the Gibraltarian tail
to wag the British dog: to take the example of the Driving Disqualification
Convention, it was obviously entirely sensible and desirable that
the Convention should apply in Gibraltar. If, however, Spanish
action prevented that happening, the United Kingdom had a duty
to its 58 million citizens to prevent drivers disqualified in
the rest of the EU from driving on British roads, and, on the
simple utilitarian principle of the greater good of the greater
number, that duty outweighed the interest of the 27,000 citizens
75. The Government's approach has been to steer a
middle course. The FCO described a "case-by-case" approach.
As Ms Quin put it, "sometimes we feel it is unacceptable
and we will veto the legislation. Occasionally, though, if the
legislation is felt to be very much in the interests of the United
Kingdom as a whole, we do allow that exclusion of Gibraltar take
She also emphasised that a decision to exclude Gibraltar "is
taken after consultation with the Government of Gibraltar and
only in exceptional circumstances."
The Committee agrees with this general approach, but proposes
that a number of ground-rules should be established.
76. First of all, the Government of Gibraltar must
be consulted on any draft EU measure which is to apply to them.
This, of course, does not imply that Gibraltar should have the
right to be excluded from directives which it regards as onerous
in terms of its own interestsnor does Mr Caruana expect
We were pleased in this context by Ms Quin's statement that HMG
wanted "the maximum involvement of Gibraltar" when draft
legislation was being considered.
The assumption on the parts of the British and Gibraltarian Governments
must be that Gibraltar will want to comply with its EU obligations,
and will therefore wish to have the measure apply in Gibraltar.
British officials in all Departments already have their attention
drawn to Gibraltar pitfalls in EU business into which they may
and early notice of EU measures to the Gibraltar Government should
help avoid these pitfalls. Feedback from Gibraltar will also ensure
that officials throughout Whitehall (many of whom may never have
dealt with Gibraltar issues before) will be aware of the Gibraltarian
concerns about the measure under discussion.
77. If Spain attempts to exclude or suspend Gibraltar
from a draft EU measure which the Government of Gibraltar, having
been fully consulted, wishes to see apply in Gibraltar, the British
Government should seek the support of other EU countries in putting
pressure upon Spain to abandon its policy. This should be done
through UKREP in Brussels and the Embassies in the countries concernedeach
of which should be briefed on the disadvantages to that country
if Gibraltar is not covered by the measure in question. Such a
campaign could, as one witness put it, emphasise that "Spain
is holding up legislation affecting 300 million people throughout
the EU because of her intransigent stand in her anachronistic
and undemocratic position over Gibraltar."
If bilateral pressure on Spain from the United Kingdom and other
EU countries does not secure a change of attitude by Spain, then
the British Government should assess whether the measure in question
will bring greater benefits to Spain than to the United Kingdom
and Gibraltar. Already, according to Ms Quin, Spain "does
not find it easy" to persuade the United Kingdom to agree
to matters which are in Spain's interests if there is an attempt
to exclude Gibraltar.
If the assessment of a draft measure is that it will benefit Spain
more than the United Kingdom, then there should be a presumption
that the United Kingdom should exercise its veto. Only if the
measure benefits the United Kingdom equally with, or more than,
Spain should the British Government consider whether it believes
the measure is of such importance to the United Kingdom as a whole
(or of negligible importance to the people of Gibraltar) that
the exclusion of Gibraltar should be accepted as the lesser of
two evils. That judgement is likely to be reached, in Ms Quin's
words, only occasionally and exceptionally. In essence, the British
Government must protect the rights and interests of Gibraltar
in this context no less firmly than it would the rights and interests
of any part of the United Kingdom.
Problems in areas of internal affairs and justice
78. During the drafting of the Protocol Integrating
the Schengen Acquis into the Framework of the European Union,
concerns were expressed by the Government of Gibraltar that Spain
should not be able to block any future participation in Schengen
by the United Kingdom unless Gibraltar was excluded. According
to evidence given to us in 1997 in our inquiry into the Treaty
Mr Caruana's mind was set at rest by the 12 June draft of the
Protocol which would not have given Spain that right. However,
the final text of the Protocol, as agreed on 16 June, re-inserted
an unanimity requirement (and therefore a veto right) which had
been present in earlier drafts. The United Kingdom thus does not
have the right to opt in to any part of the Schengen acquis
except with the unanimous consent of existing members and Spain
is able, if it wishes, to block Gibraltar's participation.
79. Evidence given to us in 1997 by the Foreign Secretary
made it clear that the British Government believed that it was
the 12 June text which had been agreed by Ministers. He was critical
of the way in which the Dutch Presidency had handled this aspect
of the discussions and spoke of a "misunderstanding."
It was not a happy example of diplomacy. For some time, the United
Kingdom attempted to have this part of the conclusions of Amsterdam
re-written. Eventually, the attempt was abandoned, and a non-binding
Declaration was adopted. Under this Schengen states undertake
to "make their best efforts" to enable the United Kingdom
to participate in Schengen.
This is obviously second-best to a position in which no state
can obstruct the United Kingdom's, and thus Gibraltar's, participation
in Schengen. It is most regrettable that the 12 June version of
the Protocol was not the one which was adopted.
80. The Government of Gibraltar wishes to participate
in any part of the Schengen acquis in which the United
Kingdom participates. This was stated in evidence to us, and a
letter was appended to that evidence which made it clear that
the British Government was informed unequivocally of this view
in November 1998.
Ms Quin told us that the issue had "not been pushed strongly"
to her by Gibraltar.
Taking the Gibraltar Government at their word, we must assume
that they wish to participate fully in "all areas of Schengen...
which do not affect the UK's border controls"in other
words, those areas in which the Home Secretary told the EU Justice
and Home Affairs Council on 12 March 1999 that he wished the United
Kingdom to participate.
It is hardly surprising that Gibraltar should wish to participate
in, for example, the Schengen Information System with the vast
data base which it will open to the very small police force controlling
an important access point to Europe. This was a point made to
us by the RGP.
81. According to newspaper reports, there was an
immediate Spanish reaction to the proposals of the Home Secretary,
with a Spanish Government spokesman quoted as saying that questions
were raised about "territorial entities and authorities,
and the documents they issue".
We are therefore faced with the very real prospect that Spain
will attempt to exclude Gibraltar from participation in this important
part of the Schengen acqis. Ms Quin told us that if Spain
tried to block British participation in Schengen it would be acting
contrary to the Declaration on "best efforts."
In addition, Ms Kate Hoey, Parliamentary Under-Secretary of State
at the Home Office, has argued to the European Scrutiny Committee
that Ireland's decision to seek participation in the Schengen
acquis alongside the United Kingdom made it very difficult
for Spain to oppose United Kingdom participation if, at the same
time, it supported Ireland's.
The British Government should liaise closely with the Irish Government
on this matter. The Foreign Secretary has also pointed out that,
if Spain is concerned about law enforcement in Gibraltar, it is
in their interests for Gibraltar to participate in Schengen.
At the same time, the Foreign Secretary assured the House that
there was "no intention of making any concessions on Gibraltar"
in relation to Schengen. This answer had re-assured the Government
However, Ms Quin left open the possibility that the Home Secretary
might decide that the United Kingdom's interests were such that
it should participate in aspects of Schengen without Gibraltar.
This led to renewed concerns in the Gibraltar Government that
the United Kingdom might be prepared to enter Schengen with Gibraltar
82. As far as measures building upon the Schengen
acqis are concerned, the United Kingdom could participate
if it secured qualified majority support.
This appears to offer less opportunity for Spain to use the Gibraltar
lever. However, measures building upon Schengen are likely to
build upon measures already part of the Schengen acqis,
and it is quite possible that Spain (or any other country) will
be able to argue that a country which does not participate in
the measure which is being built upon cannot logically participate
in the measures built upon it.
83. The Committee believes that any move to join
Schengen in respect of the United Kingdom should also apply to
Gibraltar. We sincerely hope that Spain will see that its best
interests are served by cross-border co-operation on the matters
under Schengen, not least in the areas of practical co-operation
in law-enforcement. If Spain were to seek to obstruct Gibraltar's
inclusion along with the United Kingdom, British diplomacy should
be directed towards reminding all Schengen states of the provisions
of the "best efforts" Declaration appended to the Amsterdam
Treaty. France and Germany have already welcomed the British desire
and they and other countries must be fully briefed on the unacceptabilityfrom
the point of view of all Member Statesof excluding Gibraltar
from Schengen. For Mr Caruana, the decision as to whether Gibraltar
was excluded or not was the "ultimate litmus test" of
the United Kingdom's support for Gibraltar.
We recommend that a clear message be given to Spain that any
attempt to block Gibraltarian entry into Schengen runs counter
to the letter and spirit of the Declaration made at the time of
the Amsterdam Treaty.
TITLE IV MEASURES
84. As well as Schengen, the Home Secretary signalled
on 12 March that the United Kingdom was ready to participate in
the Free Movement Chapter of the Treaty of Amsterdam, again subject
to the proviso about the United Kingdom's border controls. This
is Title IV of the consolidated version of the Treaty establishing
the European Community, which came into force on 1 May 1999, and
is concerned with asylum, immigration, visas, frontiers and civil
judicial co-operation. In 1997, Mr Caruana told the Committee
that he had been assured by the British Government that Spain
could not attempt to exclude Gibraltar from measures to be drawn
up under this Title.
He provided further evidence of this assurance in his written
evidence in this inquiry.
Opposition politicians, however, argued forcefully to us during
our visit to Gibraltar that the Protocol on the position of the
United Kingdom and Ireland to the Amsterdam Treaty (Protocol 2)
weakened the position of the United Kingdom if it was faced with
Spanish objection to the inclusion of Gibraltar in a Title IV
measure. Before Amsterdam, they believed, a measure of this nature
could be blocked by the United Kingdom if Spain refused to allow
Gibraltarian participation. This was, in fact, done in the case
of the draft External Frontiers Convention. After Amsterdam, however,
the United Kingdom could only sustain its objection for "a
reasonable period" under Article 3.2 of the Protocol. Thereafter,
according to the Gibraltarian opposition, the United Kingdom was
faced with either being excluded along with Gibraltar or signing
up but succumbing to any Spanish move to exclude Gibraltar.
85. The FCO's view is that the phrase "a reasonable
period of time" was "deliberately left flexible so that
it will not be open to member states to filibuster on a certain
measure until the UK can be excluded." They also commented
that "the length of this period is likely to depend on the
complexity of the negotiation and the political will for an agreement
at the level of the 15."
This may indeed be a reasonable interpretation of the position,
but it may well not be one which is shared by Spain. Again, we
believe that it will be important for British diplomacy to make
it clear that it will be in the interests of the whole European
Union for Title IV measures to apply to Gibraltar. The control
of asylum-seekers and illegal immigrants in Europe cannot stop
at the Gibraltar border. In this way, pressure will be put upon
Spain not to filibuster discussions until the United Kingdom accepts
the exclusion of Gibraltar from Title IV measures. But there remains
the real prospect that, if negotiations on such a measure are
blocked because the United Kingdom cannot agree to Spain's demand
to exclude Gibraltar from its scope, the Council will decide to
adopt the measure without the participation of the United Kingdom,
relying on Article 3.2 of the Protocol.
86. The position set out in the preceding paragraphs
applies when the United Kingdom seeks to take part in "the
adoption and application" of any Title IV measurein
other words, when the United Kingdom wishes to be in on the act
from the beginning. Under Article 4 of Protocol 2, the United
Kingdom may also notify its intention to accept a measure which
has already been adopted. In this case, no Member State has the
right of veto, but the United Kingdom's application of the measure
is subject to the Commission's agreement (and the Commission must
decide within seven months of the receipt of the application).
There is obviously merit in being involved in discussions from
the beginning, but the existence of Article 4 may demonstrate
a way forward if Spanish intransigence prevents a measure being
adopted with the United Kingdom (including Gibraltar) taking part.
If this route is followed, the United Kingdom's ability to influence
the content of the measure will be substantially reduced.
87. Title VI of the consolidated version of the Treaty
on European Union (the Maastricht Treaty) is what has normally
been referred to as the "Third Pillar" of the Union,
and, since the coming into force of the Treaty of Amsterdam on
1 May 1999, has been solely concerned with police and judicial
co-operation in criminal matters. Before that date its scope extended
to co-operation in the fields of justice and home affairs, including
asylum and immigration policy. A measure proposed under this Title
(except an implementing measure) must secure unanimity. Opposition
politicians in Gibraltar drew our attention to a number of instances
where Third Pillar agreements had been made by the Government
in the past with Gibraltar excluded. They cited in particular
the Brussels II Convention (on matrimonial maintenance payments)
and the Driver Disqualification Convention. They also maintained
that a number of the Conventions previously made under the Third
Pillar would in future be made under the provision of this Protocol
2 referred to in paragraph 84 above where it was their belief
that the United Kingdom loses its veto but Spain retains it. Any
future agreement under Title VI could be obstructed by Spain unless
Gibraltar is excluded.
88. In a judgement delivered in Strasbourg on 18
February 1999 in the case of Matthews v. the United Kingdom,
the European Court of Human Rights (ECHR) (which is, of course,
the court of the Council of Europe) held that the United Kingdom
had breached Article 3 of Protocol No.1 to the European Convention
of Human Rights, in that the applicant (Ms Denise Matthews, a
British citizen resident in Gibraltar) was denied the right to
participate in elections to the European Parliament (EP). The
attempt to secure EP voting rights had been long-running in Gibraltar,
and Ms Matthews's victory was widely welcomed there.
89. The British Government, which previously opposed
EP voting rights for Gibraltarian residents, has accepted the
ECHR's judgement. Ms Quin has told the House that the Government
will be "taking all available steps to secure an extension
of the EP franchise to Gibraltar." However, the Government
argue that they can do this only by amending the 1976 EC Act on
Direct Elections, which will require the agreement of all EU Member
States. Ms Quin said that "HMG will seek such an amendment
in the current negotiations in Brussels on establishing Common
Principles for EP elections."
The text of the proposed amendment was tabled in the General Affairs
Group on 16 March 1999.
90. Arrangements for direct elections to the EP were
indeed established in an Act "concerning the election of
Representatives of the European Parliament by direct universal
suffrage" which was annexed to a Council Decision. Despite
this unusual form, the Decision and the Act were in substance
an international treaty supplementary to the EC Treaty. Annex
II to the Act states that "The United Kingdom will apply
the provisions of this Act only in respect of the United Kingdom."
This apparently tautologous statement is generally understood
as excluding Gibraltar citizens from the EP franchise but the
language is hardly clear: the first reference to the United Kingdom
has to be read as a reference to the United Kingdom as a Member
State which ordinarily includes a reference to Gibraltar. This
is because Gibraltar is within the scope of application of the
EC Treaty by virtue of Article 299(4) of the Amsterdam Treaty
as a "European territory for whose external relations a Member
State is responsible." The second reference is then taken
to be to the territory of the United Kingdom as such, that is
to say, Great Britain and Northern Ireland. It might have been
possible to argue that the second reference in the text also included
Gibraltar, and therefore that amendment was not necessary for
the franchise to be extended to Gibraltarian residents. At the
very least, it would have been desirable not to cast doubt on
this possibility by suggesting immediately that amendment was
91. The need for amendment causes problems. This
is because Annex II to the Act can be amended only by the procedure
by which it was adopted, that is to say unanimity in the Council
of Ministers followed by ratification by each Member State according
to its constitutional requirements. The requirement for unanimity
has given a potential weapon of obstruction to Spain. Ms Quin
"strongly deplored" any suggestion that the Government
had invited Spain to exercise a veto, and said that the Government
"would expect all countries to abide by the court's ruling."
Nevertheless, the potential for mischief-making by either the
Spanish Government or the Cortes is obvious: the judgement by
the ECHR was against the United Kingdom, and Spain is not bound
by it directly.
There was, however, a hopeful sign when, according to a report
in El País, a spokesman for the Spanish Ministry
of Foreign Affairs refused to comment on the ECHR judgement saying
that it was an "internal matter for the United Kingdom."
92. The Government of Gibraltar has said that it
expects the violation to be "rectified as soon as possible."
Clearly it was impracticable for this to happen before the EP
elections in June 1999. However, it will be unacceptable for the
ECHR judgement not to be implemented in time for the EP election
in 2004. If there is evidence of Spanish obstruction, we believe
that it will be possibleand desirablefor the United
Kingdom to act unilaterally, at least as a stop-gap. This could
be done by amending British law to allow British citizens resident
in Gibraltar to register to vote in European constituencies in
a similar manner to the extension of the franchise in domestic
and EP elections to British citizens resident abroad under the
Representation of the People Act 1985though the 1985 parallel
is not exact since overseas electors under that Act must previously
have been registered in the United Kingdom. If Gibraltarians were
admitted to the franchise in this way, it would be very difficult
to argue that the whole election was thereby invalidatedand
no United Kingdom Member of the European Parliament could be said
to have been elected solely because of Gibraltarian votes. And
anyone who mounted such an argument would, in effect, be setting
himself or herself against the spirit of the judgement of the
ECHR. It would be quite wrong for Spain, a member state of the
Council of Europe, to attempt to frustrate the judgement of the
ECHR. Indeed, if it were to do so, the United Kingdom could cite
the Matthews judgement in defence of its actions. We
recommend that the Government make it clear that they will ensure
that all British citizens resident in Gibraltar will be able to
vote in the 2004 European Parliament elections.
93. Our general conclusion is that Gibraltar has
a right to be treated in the same way as any part of the United
Kingdom so far as the benefits of EU membership are concerned.
We recommend that the Government continue to press with determination
for the fullest protection of Gibraltarians' rights as citizens
of the EU.
134 Ev. p. 2, paras. 8-9. Back
Ev. p. 6, para. 50; p. 34, paras. 21ff. Back
Ev. p. 6, para. 50-although rather confusingly, the 4th and 7th
directives in fact are contained in two original directives and
two amending directives. Back
See para. 55. Back
Ev. p. 6, para. 49. Back
Ev. p. 6, para. 48. Back
Ev. p. 35, para. 27. Back
Ev. p. 35, para. 27. Back
Ev. p. 6, para. 48. Back
Ev. p. 35, para. 28. Back
Ev. p. 6, paras. 54 to 56. Back
Ev. p. 44, para. 98.3. Back
Ev. p. 6, para. 57. Back
Ev. p. 6, para. 52. Back
Ev. p. 44, para. 98.2. Back
Ev. p. 44, para. 98.1. Back
Ev. p. 88. Back
Ev. p. 44, para. 98.4. Back
Ev. p. 45, para. 98.5. Back
Ev. p. 112. Back
Annex 1 to Council Regulation (EEC) No. 574/72 laying down the
procedure for implementing Regulation (EEC) No. 1408/71 (O.J.
No. L74 of 27/3/1972). Back
Ev. p. 45, paras. 99.2-99.3. Back
And Norway, Iceland and Liechtenstein. Back
Ev. p. 3, paras. 19-20. Back
Ev. p. 46, para. 99.7. Back
Ev. p. 3, para. 21; p. 13,
para. 12. Back
Ev. p. 13, para. 12. Back
Ev. p. 45, para. 98.6. Back
Ev. p. 46, para. 99.8. Back
Ev. p. 13, para. 12. Back
Ev. p. 3, para. 20. Back
This Convention is concerned with such matters as the fingerprinting
of asylum seekers. Back
Ev. p. 46, para. 99.10. Back
Ev. p. 89. Back
Ev. p. 6, para 51. Back
Ev. p. 44, para. 97.8; Q150. Back
Ev. p. 45, para. 99.11. Back
Ev. p. 94 (Appendix 9). Back
HC 305, Session 1997-98, pp. 34-54. Back
Ibid QQ17-25. Back
Declaration 45. Back
Ev. p. 48, para. 111, Appendix 9. Back
Home Office Press Notice, 12 March 1999. Back
Daily Telegraph, 13 March 1999. Back
HC 430, Session 1998-99, Q8. Back
HC Deb 16 March c. 868. Back
Ev. p. 48, para. 112. Back
HC Deb 16 March c. 868. Back
HC 305, Session 1997-98, p. 37. Back
Ev. pp. 48-9, paras. 117-120. Back
HC 305, Session 1997-98, p. 54. Back
Article 11.3 of the Treaty Establishing the European Community,
as applied by Article 4 of the Protocol. Back
HC Deb 2 March 1999 c. 684; HMG para. 10. Back
HC Deb 21 April 1999 c. 569. Back
Moreover, when asked to seek to amend the 1976 EC Act in January,
before the ECHR judgement, Ms Quin thought there was no prospect
of this happening - HCDeb 26 January 1999 c. 214. Back
El País, 4 March 1999. Back
Ev. p. 49, para. 124. Back