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House of Commons Foreign Affairs Committee Gibraltar: Time to get off the fence Second Report of Session 2014–15 HC 461 House of Commons Foreign Affairs Committee Gibraltar: Time to get off the fence Second Report of Session 2014–15 Report, together with formal minutes relating to the report Ordered by the House of Commons to be printed 24 June 2014 HC 461 Published on 1 July 2014 by authority of the House of Commons London: The Stationery Office Limited £0.00 The Foreign Affairs Committee The Foreign Affairs Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Foreign and Commonwealth Office and its associated public bodies. Current membership Rt Hon Sir Richard Ottaway (Conservative, Croydon South) (Chair) Mr John Baron (Conservative, Basildon and Billericay) Rt Hon Sir Menzies Campbell (Liberal Democrat, North East Fife) Rt Hon Ann Clwyd (Labour, Cynon Valley) Mike Gapes (Labour/Co-op, Ilford South) Mark Hendrick (Labour/Co-op, Preston) Sandra Osborne (Labour, Ayr, Carrick and Cumnock) Andrew Rosindell (Conservative, Romford) Mr Frank Roy (Labour, Motherwell and Wishaw) Rt Hon Sir John Stanley (Conservative, Tonbridge and Malling) Rory Stewart (Conservative, Penrith and The Border) Gibraltar: Time to get off the fence 1 Contents Report Page Summary 3 Conclusions and recommendations 5 1 Introduction 9 2 Brief background to the dispute 11 Historic background 11 1984–1997 Brussels process 11 2001- 2002 Renewed Brussels process: joint sovereignty talks 11 2004–2009 trilateral forum and Cordoba Agreements 12 3 2012-14 escalation and current situation 14 Suspension of diplomatic talks 14 Is there any truth to tax allegations against Gibraltar? 15 Alternative motivations for criticism of Gibraltar 17 Illegal incursions into Gibraltarian territorial waters 18 Concrete reef 21 Threats against bunkering companies operating in BGTW 22 Border delays 22 European Commission border visit 23 Charts showing maximum waiting times at the border Jan-Jun 2014 26 Is there a problem with tobacco smuggling across the Gibraltar/Spain border? 28 Could Gibraltar join Schengen? 30 Diplomatic bag incident 31 International pressure 31 Action in European Union institutions 32 Action at the United Nations 33 4 Assessing the UK Government response 35 Does Spain care more than the UK about the Gibraltar dispute? 37 Diplomatic protests and summons 38 Summoning the ambassador 40 Representation in the EU 41 Prospects for taking the Gibraltar border dispute to the European Court 43 Representation at the UN 44 Alternative means of applying diplomatic pressure 45 Royal Navy and military presence 45 NATO restrictions 46 5 Conclusion 49 Annex A 51 Committee meetings in Gibraltar 51 2 Gibraltar: Time to get off the fence Annex B 52 Legal Dispute 52 Background 52 What is the European Union Habitats Directive? 52 How are SCIs agreed? 52 On what basis has the UK challenged the designation? 52 Why did it fail? 53 What happens now? 53 Formal Minutes 55 Witnesses 57 Published written evidence 58 Gibraltar: Time to get off the fence 3 Summary The behaviour of Spain toward Gibraltar is unacceptable. A NATO and EU ally is, as a matter of policy, deliberately impacting the economy of a British Overseas Territory. It is time for the Government to get off the fence and take a tougher line. Spain has long disputed the UK’s sovereignty over Gibraltar, but since the People’s Party government in Spain was elected in 2011, it has taken a more hard-line approach and has significantly increased its pressure on Gibraltar and its people. Over the last three years, Gibraltarians have suffered long border delays; maritime incursions; and heightened rhetoric from Spanish ministers about its sovereignty and its economic affairs. This has resulted in strong criticism traded between the UK and Gibraltar, and Spain, who are ordinarily strong European partners. We consider the reasons for the increased tension, including Spanish allegations against Gibraltar’s financial system and smuggling controls, as well as suggestions that Spain is seeking to distract from its own domestic troubles. We regret that dialogue between the UK, Gibraltar and Spain has been suspended over the last three years, and ask the Government to set out what offer it has made to Spain, and how it intends to secure talks before the next election. We consider the ways in which Spain has exerted pressure on Gibraltar’s maritime and border. We are deeply concerned about the dramatic increase in maritime incursions in British Gibraltarian Territorial Waters, and the hostile tactics of some of the vessels that conduct them. We applaud the restraint of British and Gibraltarian vessels in their attempts to enforce British sovereignty, and are disappointed in the FCO’s current practice of lodging diplomatic protests weeks after the event, robbing them of all force. We were particularly concerned to learn that in March 2014 it had taken the FCO weeks to register diplomatic protests about even serious incidents, which gives the wrong impression to Spain about how seriously the UK takes this issue. We have no doubt that delays imposed by Spain at the border with Gibraltar are politically motivated, and that the border is being used as a means of coercion. This is unacceptable in a European partner. The Government is right to look to the European Commission to address this matter, but it should state publicly that it will take legal action against Spain in the European Court if there is little improvement in the next six months. As a potential solution to the border problems, we consider the possibility of Gibraltar joining Schengen while the UK remains outside. Although we can see the merit in this idea in terms of removing a mechanism of pressure and creating goodwill, we suspect that the legal and economic implications could be considerable. The UK Government should support the Government of Gibraltar as it conducts its review. The Government should robustly oppose continued attempts by Spain to use international institutions as a means of securing international support for its case. Gibraltar remains on the UN list of Non-Self-Governing Territories, despite repeated UK government attempts to de-list it. We ask the Government to set out what action it is taking in order to achieve 4 Gibraltar: Time to get off the fence this. Spain also continues to refuse to allow direct military movements or communications between Gibraltar and Spain, even among its NATO partners. This restriction is unacceptable, and it is not appropriate for the UK to simply work around it. We are disappointed that the Government is not taking a more active approach to lifting the NATO restriction, including by enlisting its NATO partners’ support and by raising the matter formally at meetings. The combination of direct pressure on its border and sovereign waters as well as diplomatic pressure at the EU, UN and NATO, have resulted in a feeling in Gibraltar of being under siege. This has placed the UK Government in a difficult position. It has a broad and strong bilateral relationship with Spain that is in the interest of all British citizens, but the UK Government also has responsibilities toward Gibraltar and cannot ignore actions by Spain that are intended to make the lives of Gibraltarians difficult. The Government has taken a cautious approach until now in order to ‘de-escalate’ tensions. While laudable, this has not produced acceptable results for the people of Gibraltar. Spain should not be able to pursue aggressive policies toward Gibraltar without harming its relationship with London, and the UK Government must make this clear. It is now time to think again about what measures can be taken to discourage Spain from exerting pressure on Gibraltar. While recognising that the UK Government has limited scope for action if it is not to escalate the dispute, we recommend that the Government increase its use of its own diplomatic measures toward Spain (in terms of diplomatic protests and summons) as well as making the UK’s support for Spanish aims on the international stage dependent upon improvements to the situation in Gibraltar. Gibraltar: Time to get off the fence 5 Conclusions and recommendations Historic background 1. The difficulties the current Government faces are in part a legacy of regrettable decisions made in 2001-02 to allow for joint sovereignty discussions, which raised expectations on the Spanish side. Since 2004, the Government has sought to correct this by a consistent message that no discussions will take place without the consent of the people of Gibraltar. This is the correct approach, and should be consistently re- affirmed. The ‘double lock’ has provided Gibraltar with security following a difficult period; this guarantee of self-determination should never be abandoned again. (Paragraph 12) Suspension of diplomatic talks 2. Progress on re-starting talks is long overdue. In response to this report, the Government should set out the offer it has made to the Spanish government and its strategy for overcoming the problems. The UK Government should make clear to its international partners that it is a change in Spanish government policy, rather than UK policy, that has brought about the suspension of the much-needed talks. (Paragraph 21) Illegal incursions into Gibraltarian territorial waters 3. We are deeply concerned by the cavalier approach taken by Spanish vessels in their attempts to assert an illegitimate form of authority in British Gibraltarian Territorial Waters. We consider that the actions taken by the Government of Gibraltar in relation to the fishing agreement and concrete reef do not justify the increase in incursions, nor the hostile tactics of some of the vessels that conduct them. We recommend a more robust approach in defending British Gibraltarian Territorial Waters.