Europe Minister's Visit Reveals GSD Government Differences with the UK?

The GSD, pre-1996, were highly critical of the GSLP claiming that the GSLP was alienating Gibraltar's good relations with the UK. Remember? Fast launches, tobacco smuggling, the 1st July law and more. Where are we now? Now, we have Peter Caruana on GBC saying words to the effect that he will not allow the UK to "clawback" gains obtained under the 2006 Constitution.

This statement reveals, which previously was not public, that tensions exist with the UK over the exercise of powers by the Government and Parliament of Gibraltar under the 2006 Constitution. Have we not been told by the GSD government that the referendum on the 2006 Constitution was an exercise of our right of self determination? What now? Have we not been told by the GSD government that the 2006 Constitution is the greatest level of self government that can be attained short of independence? Well, were these statements to be accurate, how could there possibly be any differences with the UK on what powers are capable of being exercised by Gibraltar's government and Parliament?

Additionally the statement of the Minister for Europe confirming the UK's well known and often repeated commitment to a British Gibraltar sits uncomfortably in contrast with his statements about the UK's relations with Spain. He considers that the UK wants a "... friendly, constructive relationship with the Government of Spain ...". That Spain is a "... big player within the European Union ....". That the UK and Spain "... share common ground on ... liberalisation of services, renewable energy, climate change ..." . Wait for it and "... we want to deepen our relationship with Spain whether its PSOE or Popular in office."

Can these dichotomies be reconciled? What can Gibraltar do about them? One thing is sure, these contradictory issues require careful analysis, thought and diplomatic handling. Gibraltar cannot afford to pursue a policy that alienates the UK either on any differences over the 2006 Constitution or by acting in a manner that undermines its relations with Spain or its commitment to strengthen these. Can Gibraltar walk this tightrope? Is there a tightrope at all to walk along? I believe that there is but arrogant and aggressive posturing is not the way forward. No one will go to war in defence of Gibraltar over these issues. The only loser, if a tightrope is not found and carefully and acrobatically negotiated by Gibraltar, is Gibraltar.

I believe that other than for the issue of the democratic deficit,  a phrase that this blog re-popularised in Gibraltar recently,  some other issues that will be important at the next election are the ones that I raise in this piece. I will give my views but these cannot be stated briefly. I am afraid that this exposition is going to be a long and slightly complicated. I will do my best to explain my views as briefly as making my explanation understandable permits.

On the 2006 Constitution, one can take an exclusively legalistic view, as Mr Caruana seems to do. I fully accept that such a view is the starting point but politics and diplomacy need to transcend legalisms where international relations are engaged, in this context relations between the UK and Gibraltar. To understand what I mean I have to briefly analyse what I consider to be the legal position under the 2006 Constitution that is relevant to this issue.

Gibraltar's Parliament  is a subsidiary legislature. Subsidiary to the Parliament in Westminster and to the exercise of prerogative powers by the British Crown. The importance of understanding this has several dimensions. One is that the delegated legislative power is circumscribed in the 2006 Constitution by the words " ... the Legislature may make laws for the peace, order and good government of Gibraltar". Although the words in bold give wide and extensive powers they are also words that delimit, in some small degree, the exercise of power by the legislature. This, in turn, delimits the power of the executive arm of government because it can only govern under laws made by Parliament.

There are further restrictions on the ability of Gibraltar's Parliament to legislate. Chapter 1 of the 2006 Constitution gives to citizens all the fundamental and human rights, with power to the Supreme Court of Gibraltar, therefore access to the whole appeal system up to the Privy Council in England, to enforce these rights.

What this Chapter 1 and the words " ... peace, order and good government ... " also do is to bring into play the Governor's responsibility and power to refuse to assent to legislation under section 33(2) on the grounds that it is "... in any way repugnant to or inconsistent with this Constitution" and "... repugnant to good government or incompatible with any international legal obligation." Fundamental and human rights fall fairly and squarely within both these provisions, they are part of the 2006 Constitution and also part of international legal obligations.

The reserved powers are a further restriction. The conduct of external affairs (in consultation with the Chief Minister as may be practicable), defence, internal security and certain appointments of public officers are exclusively the domain of the Governor. The Governor has power to legislate on these matters in the event that, following consultation with the Chief Minister, Parliament will not do so. This begs the question, is compliance with international legal obligations, including fundamental and human rights, an external affair?

Bearing these constitutional constraints in mind the statement by the Minister for Europe that " the implications of that new constitutional relationship are still being worked through ... it is important that the continuing role of the Governor in the Constitution is fully respected" can begin to be understood. What is worrying is that Mr Caruana should talk of "clawback" in circumstances that the UK's constitutional powers are constrained to repugnancy and inconsistency with the 2006 Constitution, issues of good governance and compliance with international legal obligations? What possibly could he or his government be considering legislating on that do not fall within these requirements? What is within the realms of considerations that should not be capable of political and diplomatic agreement with the Governor?

In the background to this analysis there is the UK's nuclear option. The one that, other than for me, no one seems to like to mention, rather like the skeleton in the cupboard. I refer again, of course, to the last clause in the schedule to the 2006 Constitution. It is the one that no politician that supported the adoption of the 2006 Constitution likes people to know about so I will quote it in full once again "There is retained to Her Majesty [let there be no doubt that this means the UK Government] full power to make laws for the peace, order and good government of Gibraltar (including ... laws amending and revoking this Constitution)"

Self determination? The greatest level of self government that can be attained short of independence? There again in the Despatch to the 2006 Constitution what the UK says is that it "... supports the right of self-determination of the people of Gibraltar ... except in so far as ... Article X of the Treaty of Utrecht gives Spain the right of refusal ... independence would only be an option for Gibraltar with Spain's consent".  So how about that, the word used is "supports"? Is the recording of Gibraltar"s non acceptance of this position relevant? Well I have expressed views about that in the past.

I believe that none of these constitutional issues should gives rise to confrontation with the UK. These matters are clearly capable of mature political or diplomatic resolution and understanding. The applicable principles under the 2006 Constitution are not only fair and reasonable but protective of democracy and the people. An essential requirement in a governmental system so devoid of checks and balances and democratic protections. I would suggest that the introduction of electoral and parliamentary reforms will also help overcome some concerns that may exist presently, as greater legislative control and review will be the beneficial result.

Confrontation on the 2006 Constitution is not helpful in resolving the second dichotomy. The issue of the UK's desire to have a strong relationship with Spain, whilst keeping its solemn undertaking to Gibraltar not to allow a change in the sovereignty status of Gibraltar without the freely and democratically expressed consent of the people.

One option to resolve this problem is to agree and negotiate an overall solution of Spain's problem with Gibraltar. The reality is that the people of Gibraltar and the aspirations of Spain are at such opposite poles that, in practice, this is no solution. That, however, is not reason enough for this possibility never to be considered. It is a possibility that needs to be dusted off on occasion and looked at. There may be a boat that needs to be caught at one stage that if Gibraltar misses it will be to its detriment. Geopolitical factors and military considerations involving Morocco and the present unrest in North Africa and Spain's role in that, bearing in mind the constraints on the UK's military spending and capability, may impact on this.

The reality is that right now there is no practical possibility that such a solution is attainable nor acceptable to us, as a people in Gibraltar. The reality is that there has to be an acceptance (albeit begrudging) by Spain that we, in Gibraltar, do not want a change in sovereignty. This was clearly expressed, most recently, in the 2002 Referendum following the joint sovereignty accord. The international relations between the UK and Spain are by far wider and of greater import than the issue of the sovereignty of Gibraltar. I believe that it is not an issue that Spain will use to negotiate its wider relationship with the UK. The broader interests of both countries and the benefits to each are such that the issue of Gibraltar will not break or weaken that cooperation, which is the opposite view to that expressed by Senator Caracao, which I do not believe is the correct analysis.

What cannot happen, however, is that relations deteriorate over Gibraltar. It is in this context that the trilateral process is important. It seems to me that this is the tightrope that Gibraltar has on offer. The unblocking  of the trilateral process is the departing joint message and objective of the Minister for Europe and the Chief Minister. The territorial waters issue is what has led to the present deadlock. If one sets aside the political objectives of Spain and also those of Gibraltar, by which I mean making practical arrangements without prejudice to those objectives, the aims of all parties must be identical, briefly they are territorial security, law and order. It cannot be beyond the wit of man to find a practical solution to guarantee those aims at a practical level. Practical solutions have been found to even more thorny issue, I refer for example to the air terminal and airport. Always bearing in mind that it is sovereignty that is sacrosanct.

Tightropes are not easy to walk along but falling off is far more painful. I think we need to inch forward with wisdom, humility and in a non-confrontational manner but always defending the fundamentals that are sacrosanct to us in Gibraltar, British sovereignty. Let us not engage in macho behaviour to our detriment. Certainly the GSD government should practice what it preaches: a policy of friendship with the UK, after all we want to remain British. They have given us a solemn oath enshrined in the 2006 Constitution, which they honourably maintain. Let us reciprocate with equanimous behaviour and cooperate by walking a path that is beneficial to both the UK and Gibraltar.