Select Committee on Foreign Affairs Appendices to the Minutes of Evidence


Memorandum from Dr Ken Ruiz, Sheffield

  1.  I gather the Foreign Affairs Select Committee is to visit Gibraltar at the beginning of July this year to consider further issues concerning Gibraltar at this time, particularly as relate to matters which HMG is currently discussing with the Spanish govt. If I may I would like to express my views on these matters as you are gathering evidence once more.

  2.  HMG is acting unconstitutionally by entering arrangements with Spain regarding Gibraltar's sovereignty, not first having obtained Gibraltar's agreement (by universal suffrage or by consent of its elected representatives) to do so. The very first words of the Gibraltar Constitution (1969)—the often quoted preamble—are;

  "Whereas Gibraltar is part of Her Majesty's dominions and Her Majesty's Government have given assurances to the people of Gibraltar that Gibraltar will remain part of Her Majesty's dominions unless and until an Act of Parliament otherwise provides, and furthermore that Her Majesty's Government will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes".

  The current talks on sovereignty of Gibraltar are unconstitutional, and therefore any conclusions they arrive at cannot be legitimate.

  3.1  One of the options being discussed by HMG we are led to believe is the partitioning of Gibraltar. In November last year the Foreign Secretary expressed his opinion that such partitioning might occur, with the land of the isthmus able to be negotiated away separately from the rest of Gibraltar. I expressed my views on these thoughts of the Foreign Secretary's at the time, and they were included as evidence in the last Foreign Affairs Committee Report on Gibraltar (First Report, Session 2001-02, published 4 December 2001, p.74)

  3.2  Discussion of the isthmus being discussed separately was waned, but instead there is talk of the naval base being negotiated away separately from the rest of Gibraltar in as much as while joint sovereignty with Spain is proposed for the major part of Gibraltar, the naval base would continue to be entirely sovereign British territory. There can be no justification whatsoever for this to occur, and again I explained why in my view this was not possible in my evidence previously presented to this Committee. My closing remarks for my argument then, which still apply today and cover every part of Gibraltar, were;

    "Therefore, whatever terms or arrangements or treaties or by whatever means the isthmus is held under, be it by the same means or different as those by which the rest of Gibraltar is held to be British, none of it is open to being gifted by Britain to anyone without the consent of the Gibraltarians that it should be so. Not only are the people of Gibraltar indivisible from the land of Gibraltar, all that land that is Gibraltar is also indivisible without the consent of the Gibraltarians."

  4.1  One has to ask what is to happen when all the current fuss has died down. What is certain is that there will be no change in Gibraltar, as the people appear to be vehemently opposed to change as countenanced by the Foreign Office. That is not to say that change itself is unwelcome. Is change necessary however?

  4.2  Messrs Straw and Hain have stated frequently over the last few months that Gibraltar's current status is unsustainable, and must change. They have also stated with increasing frequency of late that it is better not to sign up to a deal at all than to sign up to a bad deal. One must ask of course, who is to be the judge of whether the deal is a good or bad, and good or bad for who? It must be the case that the deal must be seen as being good or bad for Gibraltar and no other party—those most affected by any deal or change. Equally, the judges of whether the deal is a good or a bad one must be the Gibraltarians and no-one else, for exactly the same reasons.

  4.3  On not signing up to the deal that is currently being pursued, we are left with the current status, which is by the words of the various ministers is unsustainable! If they are to be believed, one must conclude that, in the event of the current negotiations with Spain not resulting in anything concrete (almost certainly to be the case given public opinion in Gibraltar) it will be necessary to pursue an alternative means of altering Gibraltar's current status. In any case, the Brussels Process will have come to its end and to no avail, the problems existing between Gibraltar and Spain remaining unresolved. All efforts by all concerned since 1984 would have been a waste of time and effort.

  4.4  That being the logical conclusion of the statement made by the various ministers at various times, one must ask who will negotiate Gibraltar's status? Well, the Brussels Process with Spain will have been concluded, and nothing will have been achieved. The only interested party NOT to have been involved in any process is Gibraltar. Any future process seeking to resolve the impasse must therefore include Gibraltar (mandatory from a moral standpoint and not yet tried) and exclude Spain (tried and failed). This is in fact the only legitimate option which should have been considered in the first place as Spain has no legal right to determine anything in Gibraltar.

  4.5  The only legitimate negotiations of Gibraltar's constitutional status are the Gibraltarians themselves together with the administering power, the United Kingdom. First Gibraltar and then the UK being the most affected by any constitutional change must be satisfied and in that order. Spain, a gatecrasher at the party and the least affected by Gibraltar's constitutional status must be the lowest priority of those whose aspirations are to be satisfied. If as HMG stated months ago, it wishes to see a once-and-for-all resolution to the problems which exist between the UK and Spain over Gibraltar, the only logical thing to do is to resolve Gibraltar's constitutional status in such a manner as will render Gibraltar forever unattainable by Spain. Spain will have no option but to abandon all hope of ever gaining sovereignty over Gibraltar, however long it may take them to come to this inevitable conclusion. This I believe can best—perhaps only—be achieved by integrating Gibraltar within the United Kingdom. If done appropriately, several things can happen simultaneously;

    (a)  The ToU will cease to have any relevance whatsoever, as the only "relevant" part of it today is the reversionary clause to Spanish sovereignty, which will have been rendered obsolete. The act of making Gibraltar unattainable by Spain in this manner will not in any case have contravened the terms of the ToU, as Gibraltar remains sovereign British territory. What would be stated then is that not only did Spain cede Gibraltar to the UK in perpetuity in 1713, the UK is taking Gibraltar into itself a manner which renders it forever indivisible from the UK.

    (b)  Gibraltarians would have by negotiation with the UK have expressed their will and will have determined their own future, in accordance with UN doctrine on the right to self-determination of a colonised people.

    (c)  Gibraltar can be de-listed as a colony, being removed from the UN list of non self-governing territories.

  4.6  Appropriate terminology will have to be employed in the expression of Gibraltar's new status to ensure that Spain's discrimination against Gibraltar in all spheres including the EU can be countered effectively by a hitherto reluctant United Kingdom. It will then be frankly impossible for the UK to cave in to Spanish pressure as it has done so consistently in the past. Spain will doubtless continue to pursue her claim over Gibraltar, for a while at least. The difference would be that from such a time as Gibraltar became incorporated within the UK, it would be as difficult for HMG to permit Gibraltar's exclusion from any aspect of EU legislation under pressure from Spain, as HMG excludes any other part of the UK.

  5.1  It was once said that Gibraltar could not pick and choose what aspects of EU legislation might and might not apply to it. What has no far occurred instead is that Spain has picked and chosen what parts of EU legislation should apply to Gibraltar, and the UK for whatever reason has gone along with Spain. Meanwhile, Spain has picked and chosen what EU legislation in precisely the fields of finance and VAT might apply to parts of Spanish territory which Spain insists are integral parts of the Spanish state such as the Canary Islands, Ceuta and Melilla.

  5.2  Similar arrangements and exclusions can be secured for Gibraltar if sufficient political will can be exercised. Gibraltar derives a significant proportion of its income from the finance sector, and the legality of aspects of this has recently been confirmed following scrutiny by the European Commission. Therefore, it would not be illegal to continue these practises even if not widely practised within the rest of the EU. If Spain should complain about Gibraltar's exclusions, she would only have herself to blame for setting the example as to how it could be achieved.

  Thank you for the opportunity to make these comments.

Dr Ken Ruiz


May 2002

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