Gibraltar

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.

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.

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. In its response to this report, the Government should set out the naval and police options it has identified to this end; and those it intends to pursue.

In its response to this report, the Government should state its position on whether Gibraltar could join Schengen without the rest of the UK, and how it will support the work of the recently-announced consultation.

We are in no doubt that Spain’s measures at the border in 2013 were politically motivated and that it continues to use the border as a coercive tool against Gibraltar. This is entirely unacceptable behaviour by an EU partner and should not be tolerated by the UK.

The Government should continue to pursue a stronger response by the European Commission through consistent and sustained follow-up in Brussels. The Government should also encourage further monitoring inspections by the Commission with the minimum possible notice given to both parties.

We are particularly concerned by Spain’s withdrawal from some aspects of the Cordoba Agreement, representing a significant backward step in relations with Gibraltar, and the UK. As Spain tries to apply pressure via EU aviation legislation, the UK Government should ensure that its EU partners are fully aware that Spain has reneged on an agreement negotiated in good faith, under which the UK has paid over £70 million to Spanish citizens. By continuing to abide by its obligations under the Cordoba Agreement, the UK Government has put itself in a strong position to give weight to this argument.

Spain’s claims on Gibraltar are undermined by its defence of its own overseas territories in North Africa. The Spanish Government’s arguments about the constitutional differences between Ceuta and Melilla and Gibraltar are unconvincing at best, and leave Spain open to the charge of hypocrisy.

Spain is a key partner for the UK both bilaterally and in the EU and NATO. It is a testament to the importance that both states place on the bilateral relationship that it remains strong despite our differences. However, Spain should not be able to pursue aggressive policies toward Gibraltar without consequences for its relationship with London. (Paragraph 59) Does Spain care more than the UK about the Gibraltar dispute?

Ministerial visits are an important display of support to the people of Gibraltar, as well as a signal to Spain of the UK’s continued commitment. We recommend that, in the light of the difficult twelve months that Gibraltar has experienced, the Government consider a high-level visit to Gibraltar before the end of this year and we welcome the fact that the Minister for Europe will be visiting shortly.

When the UK delivers protests about maritime incursions three or four weeks after the actual incident, it robs those protests of any force they might have had and gives the impression of an official simply ‘going through the motions’. This might be acceptable at a time of relative harmony, but during this period of heightened pressure on Gibraltar, the Government should re-assess its internal deadlines for delivering diplomatic protests. We recommend that it put in place procedures under which all diplomatic protests to Spain about Gibraltar are delivered within a maximum of seven days.

We recommend that if the situation does not show signs of improvement, the Government should re-assess its criteria for summoning the Spanish Ambassador Gibraltar: Time to get off the fence 7 and should consider doing so more frequently to reflect its ongoing concern about the unacceptable status quo.

The failure to prevent British Gibraltarian Territorial Waters from being designated a Site of Community Interest by Spain was a significant mistake which has proven impossible to reverse. The FCO should set out the action it has taken since this incident to ensure that Government departments consider Gibraltar, and Overseas Territories more generally, when representing the UK at EU level.

The Government should keep the option of using Article 259 to take Spain to the European Court under review, pending the final results of the Commission’s investigation into the situation at the border. If the situation at the border does not improve within the next six months then the UK should make it clear that it intends to begin legal proceedings against Spain under Article 259.

The Government should robustly oppose continued attempts by Spain to use international institutions as a means of securing international support for its case. We again urge the Government to take steps to remove Gibraltar from the UN list of non-self-governing territories. The Government should set out in its response to this report what action it is taking in order to do this.

The Government should seek to identify areas of non-essential cooperation and occasions on which British assistance would be helpful to Spain (for example, Spain’s bid for membership of the UN Security Council) and make the UK’s support dependent on improvements to the situation in Gibraltar.

We commend the Government’s policy of choosing to use Gibraltar as a stop off point for naval vessels in transit as a sensible and effective measure.

We are disappointed that so little progress has been made in the last 16 years toward lifting Spain’s NATO reservation against ships travelling between Spanish and Gibraltarian ports. The UK should actively seek for Spain’s NATO reservation on Gibraltar to be overturned and set out in its response to this report how it intends to do so. The Government should also set out any steps it has taken to solicit support from other NATO partners who are inconvenienced in operational matters by Spain’s restriction on Gibraltar.

We consider that the pressure currently being applied on Gibraltar by Spain, through the imposition of delays at the border, unwarranted maritime incursions, and diplomatic pressure in international institutions amounts to a campaign of harassment and intimidation.

The UK Government has shown restraint in response to provocation by Spain. It was right to do so: but the UK’s approach of consistently trying to de-escalate tensions in the face of mounting provocation has also achieved little discernible effect, aside from giving Gibraltarians the impression that not enough is being done. It is now time for the UK Government, with the agreement of the Government of Gibraltar, to think again about what measures can be taken to discourage Spain from exerting pressure on Gibraltar.

Finally, while intensifying the diplomatic pressure, the Government should make clear to the Spanish Government that there is much goodwill between our peoples and a real desire on the part of the British government to re-start dialogue.

Gibraltar and the UK consider that Gibraltar’s territorial waters extend three miles from the Territory according to the UN Convention on the Law of the Sea (UNCLOS). Spain insists that the Treaty of Utrecht did not cede any coastal waters to Gibraltar. Incursions by Spanish vessels into British Gibraltarian Territorial Waters (BGTW) have therefore long been a source of tension between Gibraltar and Spain, but they have escalated to new heights since 2012.

These illegal incursions do not include vessels conducting the ‘right of safe passage’ as determined in UNCLOS (that is, the right to peacefully and directly traverse territorial waters), used by many vessels every day in BGTW. Rather, they fall into two main categories: Spanish police vessels accompanying Spanish fishermen seeking to conduct commercial fishing in BGTW; and other Spanish state vessels (i.e. police, naval or research vessels) asserting their supposed right to be active in those waters. Data from the UK Government tracking illegal incursions into BGTW shows a pronounced increase in illegal incursions by Spanish government vessels since March 2012:29 29 HC Deb, 10 Apr 2014, Col 374W Gibraltar: Time to get off the fence 19 68 61 58 54 505 0 46 39 3 6 36 38 35 373 8 29 30 252 4 24 26 212 2 17 9 2 5 3 6 4 5 0 1 0 0 2 2 3 5 1 3

The increase is in part due to a decision in 2012 by the incoming Gibraltar Government to end an informal agreement that had previously allowed some Spanish fishing vessels to operate in BGTW. There is a long history to the fishing dispute: in 1991 Gibraltar passed legislation that made it unlawful to use the most common commercial fishing methods in Gibraltarian waters, for reasons of conservation. Nonetheless, some fishing was allowed to continue, until a surge in the number of fishing boats in 1997-98 prompted the Gibraltarian government to enforce it. Protests followed, and an agreement was brokered in 1998 between the Gibraltarian Government and Spanish fishermen’s representatives that allowed for limited fishing. Our predecessor Committee welcomed the agreement as a practical response but urged Gibraltar to harmonise its legislation to reflect the agreement. In 2012, the new Government of Gibraltar ended the agreement (having campaigned on a manifesto promise to do so), explaining that it was contrary to Gibraltarian law. This resulted in a surge of illegal incursions by Spanish Guardia Civil boats accompanying Spanish fishing vessels. The Government of Gibraltar has since been in negotiation with Spanish fishermen, and the Chief Minister told us that they were close to finding a resolution. However, the Chief Minister rejected the suggestion that fishing disputes were the main cause of the problem, stating: At the early stages of what you call the fishing dispute, some of those state actors—the Guardia Civil in particular—accompanied Spanish fishing vessels into our waters. Therefore you would count that as an incursion. But that has not happened for months, or for at least a year or so. What we are seeing is an increase in incursions exclusively by state actors, doing things totally unrelated to fishing, for example, interfering with executive action being taken by the Gibraltar authorities; interfering with 20 Gibraltar: Time to get off the fence lawful bunkering30 activities in our waters; and filming those who are bunkering in our waters in an attempt to intimidate them. Although I would very much wish that we could get rid of the problem of incursions simply by resolving the fishing issues that we have with 60 fishermen in Spain, I do not think that we will.31

Aside from the fishing dispute, Spanish state vessels (ie. Guardia Civil or even naval or research vessels) also conduct incursions into BGTW in order to demonstrate a form of control and non-recognition of British sovereignty over BGTW. The refusal of these vessels to recognise the authority of the Royal Gibraltar Police (RGP) and Royal Navy in BGTW has led to a number of dangerous incidents, for instance: • On 25 June 2013, rubber bullets were reportedly fired by a Spanish Guardia Civil vessel pursuing a jet skier into BGTW. Mr Lidington complained to the Spanish authorities, but Spain denies that the incident took place, stating that no incident had taken place and no shot was fired. 32 • On 30 October 2013 a Guardia civil patrol boat approached Royal Navy vessels in BGTW and conducted “several dangerous manoeuvres”, and a minor collision occurred (no damage or injuries resulted).33 • On 2 April 2014, the research ship Angeles Alvarino accompanied by a Guardia Civil vessel entered BGTW, and "dangerous manoeuvring" by the Guardia Civil vessel resulted in a minor collision with a police boat. • In late April 2014 Spain claimed that the Royal Gibraltar Police had caused injuries to a Guardia Civil officer; press reports stated that the officer was injured following a collision with an RGP launch.34

While visiting Gibraltar, we were shown video evidence of the aggressive tactics used by some vessels, resulting in collisions and a danger of serious damage and injury. The naval and police officers we spoke to considered that if the current activity were to continue, it would be only a matter of time before there was serious injury. Such incursions deliberately make it difficult, if not impossible, for the Royal Gibraltar Police (RGP) and Royal Navy vessels to enforce their authority and British sovereignty without becoming involved in a potentially serious incident at sea. We were impressed by the professionalism and restraint with which both the RGP and Royal Navy conducted their work in the face of clear and repeated provocation.

On other occasions, Spanish vessels have entered BGTW and simply refused orders from British authorities to leave. For example: 30 Bunkering is the process of supplying fuel to a ship for its own use 31 Q103 32 “UK protests after ‘shots fired at jet skier’ off Gibraltar”, BBC News, 25 June 13 33 HC Deb, 4 November 2013, col 3WS 34 “Spain to intensify border controls”, GBC news, 16 May 2014 Gibraltar: Time to get off the fence 21 • On 19 November, 2013 a Spanish government research ship entered Gibraltarian waters and refused orders from the Royal Navy to leave. Its captain said the ship was conducting "oceanographic works in the interest of the European community" at the behest of the Spanish government. A small British patrol boat closed in on the Spanish vessel, ordering it to leave Gibraltar waters, but it refused. The Spanish ship finally left the area after almost 24 hours. Mr Lidington strongly condemned the “provocative incursion”, and the FCO summoned the Spanish Ambassador the following day. 35 • On 19 February 2014, a Spanish warship entered the waters around Gibraltar causing the diversion of a Royal Navy ship and thereby disrupting a British forces parachute training exercise. Warnings were issued to the Spanish vessel and a Royal Navy ship ‘shadowed’ the vessel, but it left only after radioing to state that it was in Spanish waters.36

In a further attempt to demonstrate a form of control over BGTW, in 2008/9 Spain applied to the European Commission to designate almost all of BGTW as a protected marine area. The application was approved before the UK was aware of the designation. The UK tried to appeal but lost on a technicality relating to the timing of the case. We will return to the UK Government’s mishandling of this situation later in this report. Concrete reef

In July 2013, the Gibraltarian government installed concrete blocks in BGTW in an area north-west of the airport runway, in order to create an artificial reef to encourage sea life to flourish in a marine reserve. Spain has vigorously protested about the installation of the concrete blocks. The Foreign Minister has stated that the blocks were placed in Spanish waters "without the necessary authorisation"; as they are located in waters off the isthmus connecting the Rock of Gibraltar to the mainland, and he argues that neither the isthmus nor the water was ceded under the Treaty of Utrecht. Spain also considers that the blocks contravened environmental laws; and damaged its fishing industry because Spanish fishing nets were in danger of catching on them. The Government of Gibraltar argues that the reef was installed in BGTW (it does not accept Spanish claims over sovereignty of the isthmus); and that it was installed for conservation purposes. The Government of Gibraltar said that the artificial reef is identical to a number of artificial reefs Spain has itself recently installed in its own waters for the same purpose,37 and the Foreign Secretary repeated this claim in his statement on 2 September 2013.38 Anger about the installation of the reef has been widely seen as the motivation for the Spanish government’s imposition of restrictive checks at the land border between Spain and Gibraltar. It was also the reason that lorries carrying 35 HC Deb, 20 November 2013, col 1234 “36 “Gibraltar: UK to protest against actions of Spanish warship that disrupted British military training”, The Telegraph, 19 February 2014 37 See, for example, “Gibraltar: Spanish government 'hypocrites' for complaining about reef”, The Telegraph, 6 August 2013, and “Gibraltar row: Spain 'misinformed' over artificial reef”, Guardian, 22 August 2013 38 HC Deb, 2 September 2013, col 11WS 22 Gibraltar: Time to get off the fence construction materials were turned away from the border as they tried to enter Gibraltar in July 2013.39

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. In its response to this report, the Government should set out the naval and police options it has identified to this end; and those it intends to pursue. Threats against bunkering companies operating in BGTW

In August 2013, the Spanish Government also announced that it would take steps to outlaw the refuelling of ships at sea (known as bunkering) in the waters surrounding Gibraltar, for environmental reasons. The Spanish government warned that it would impose fines on companies flouting the ban. Bunkering is an important industry for Gibraltar, which is well-placed to offer vessels re-fuelling as they pass through the straits. In June 2013, the Spanish Environment Ministry sent a letter to one company alleging that it was in breach of Spanish law and threatening sanctions, which prompted a diplomatic protest from London.40 Spain disagreed with the UK’s protest, but has not pursued a case against the company and Mr Lidington told us that this was a case of effective and robust diplomatic action.41 Border delays

Unlike Spain, Gibraltar is not part of the Schengen open border agreement. The UK opted out of joining the main parts of Schengen when it was brought under the umbrella of the EU institutions in 1997, which ensured that the UK and Gibraltar maintain an external border. This means that Spain and Gibraltar are both entitled to carry out proportionate checks on travellers and vehicles crossing the border. However, Spanish border controls regularly result in extended traffic delays for those going in and out of Gibraltar and are a source of regular antagonism between the Gibraltarian government and Spain. The delays not only cause enormous inconvenience to Gibraltarians but also affect the seven to ten thousand Spanish citizens who cross the border every day to work in Gibraltar.

In July and August 2013, Spain suddenly instigated rigorous border checks that resulted in motorists waiting up to seven hours to cross the border, as each car was thoroughly searched. The queues peaked on the weekend of 27-28 July, and again on 9-10 August. These delays followed shortly after Gibraltar’s installation of the artificial reef in BGTW, and many observers, including the Governments of Gibraltar and the UK, 39 HC Deb, 19 November 2013, col 282WH 40 HL Deb, 24 March 2014, col 71W 41 Q142 Gibraltar: Time to get off the fence 23 consider the timing to have been politically motivated. Mr Picardo described the delays to be another example of what he termed “the use of the frontier as an abusive weapon against Gibraltar and its economy”.42

Spain stated that the delays were due to measures it had been forced to take to prevent tobacco smuggling across the border. Foreign Minister Jose Manuel Garcia-Margallo said at the time that Spain was considering introducing more formal restrictions, including a €50 fee to cross the border, and that Spain could close its airspace to flights heading to Gibraltar (the European Commission quickly warned Spain that a €50 fee at the border would be illegal).43 In an article published in the Wall Street Journal in August 2013 titled ‘We need to talk about Gibraltar’, Mr Margallo listed Spain’s criticisms of Gibraltar, including the installation of concrete blocks, the fishing dispute, smuggling, and Gibraltar’s tax regime.44

The UK government formally protested about the delays. It summoned the Spanish Ambassador on 2 August; the Foreign Secretary spoke to his Spanish counterpart on 7 August; and the Prime Minister phoned Prime Minister Rajoy on 7 August. As delays continued the following weekend and throughout August, the Prime Minister called the President of the European Commission to request an urgent EU monitoring mission to inspect the border. European Commission border visit

The European Commission conducted a one-day visit to the border on 25 September

Both Spain and the UK welcomed the Commission’s findings. Spain said it was satisfied that the Commission had found that its checks were not illegal,47 while Mr Lidington, Minister for Europe, welcomed the Commission’s recommendations to Spain for changes to its side of the border, which he described as “strong”, and said that the UK and Gibraltarian governments had been calling for such measures for years. However, he added: It is unsurprising that the Commission found insufficient evidence that Spain is breaking EU law, as the Spanish checks were significantly reduced during the Commission’s visit. We remain confident that the Spanish government has acted–and continues to act–unlawfully, through introducing disproportionate and politically motivated checks at the Gibraltar-Spain border. And we will continue to provide evidence of that to the Commission.48 The visit was announced in advance, in accordance with the then Schengen Border Code. These rules have recently been updated and it is now possible for European Commission experts to make border visits with only 24 hours’ notice.49 The Government of Gibraltar, in 46 “Commission reports on the border situation in La Línea (Spain) and Gibraltar (UK)”, European Commission press release IP/13/1086, 15 November 2013 47 “Spanish border checks on Gibraltar not illegal, EU says”, euobserver, 18 November 2013 48 “UK welcomes Commission’s statement on Gibraltar-Spain border”, Foreign and Commonwealth Office press release, 15 November 2013 49 COUNCIL REGULATION (EU) No 1053/2013 establishing an evaluation and monitoring mechanism to verify the application of the Schengen acquis and repealing the Decision of the Executive Committee of 16 September 1998 setting up a Standing Committee on the evaluation and implementation of Schengen, 7 October 2013; Official Journal of the European Union L 295/27, 6 Nov 2013 Gibraltar: Time to get off the fence 25 consultation with the UK, immediately published the letter it had received from the Commission. The Spanish Government did not. Following an official ‘access for documents’ request by the then MEP for Gibraltar, Sir Graham Watson, the Commission published the letter it had sent to Spain. However, it has refused a second ‘access to documents’ request for a further letter it sent to Spain about the border on 19 December

Although the delays have lessened since August 2013, they remain significant. At the time of our visit to Gibraltar in March 2014, the Chief Minister told us that in the previous 50 “Gibraltar-Spain border delays: EU Recommendations six months on”, Foreign and Commonwealth Office press release, 15 May 2014 51 “Gibraltar-Spain border delays: EU Recommendations six months on”, Foreign and Commonwealth Office press release, 15 May 2014 52 “Spain to intensify border controls”, GBC news, 16 May 2014 53 “Spain hits back at Britain over border smuggling”, Gibraltar Chronicle, 18 May 2014 26 Gibraltar: Time to get off the fence month, cars crossing the border were waiting on average 67 minutes to enter Gibraltar and 93 minutes to leave.54 He added that Spain had also implemented a new measure of delaying the pedestrian queue for up to 90 minutes, stating: Things are not getting better, and the figures I am giving you take account of the reduced number of cars and pedestrians coming into Gibraltar. In my view and that of the Gibraltar Government, the issue at the border is not being resolved. 55 The British Government agrees that border checks remain “disproportionate” and has promised to maintain diplomatic pressure until they return to reasonable levels. The Government of Gibraltar has provided data to the European Commission on waiting times to cross the border experienced over the last six months, which states that delays of an hour or more for traffic leaving Gibraltar took place on at least 20 days each month between November 2013 and May 2014, and that maximum waiting times are still reaching up to three hours for vehicles on occasion, while pedestrians have waited for up to 90 minutes to cross the border: Charts showing maximum waiting times at the border Jan-Jun 2014 54 Q110 55 Q110 Gibraltar: Time to get off the fence 27

It is not only Gibraltarians that are affected by the border delays: up to 10,000 Spanish nationals cross the border to work in Gibraltar each day. The area on the Spanish side of the border has experienced high levels of unemployment and poverty, and many of its residents depend on work and business from Gibraltar. We received representations from Spanish Workers in Gibraltar (ASCTEG) and For a Humanitarian Frontier, an organisation which defends the rights of commuters who cross the frontier of Gibraltar and La Linea on a daily basis “who suffer unnecessary, unjustified and in an inhumane way, the long lasting queues because [of] the use of the frontier as a political weapon”.56 The local government in Andalucia, led by Socialist (PSOE) party, has also protested about 56 Spanish Workers in Gibraltar(ASCTEG)/For a Humanitarian Frontier (GIB0004) 28 Gibraltar: Time to get off the fence the restrictions. The local Andalusian parliament passed a motion in May 2014 that called on the Spanish government to relax controls at the border which were adversely affecting Spanish workers crossing daily into Gibraltar. The motion was passed with the support of the Socialist and left wing parties, who reportedly claimed that the controls had had a disastrous effect on businesses on the Spanish side of the border. The press reported that the PP government in Madrid considered the motion to go against Spanish national interests.57 The press reported in May 2014 that Susana Diaz, the PSOE president of the Junta de Andalucia, had written to Spain’s central government urging it to ease controls that had become a “heavy burden” for cross-border workers.58 The opposition PSOE has previously criticised the Spanish Government for its policies toward Gibraltar, accusing it of “starting a conflict without a solution” and describing “sad outcomes” for the local region.59 Is there a problem with tobacco smuggling across the Gibraltar/Spain border?

Tobacco smuggling does take place across the Spain/Gibraltar border and has soared following the financial crisis and unemployment in Spain. Spain claims that seizures of illegally imported cigarettes from Gibraltar increased by 213% between 2010 and 2012.60 Mr Margallo told Spain’s own Foreign Affairs Committee in September 2013 that the number of cigarettes imported into Gibraltar was so high that it was not possible that they were for domestic consumption only: 55 million packs of cigarettes were imported to Gibraltar from Spain in 2009; in 2010 this rose to 86 million packs; in 2011, to 117 million, in 2012, to 139 million, and in 2013, in six months and even when controls had been implemented, 93 million packs. This suggests if action had not been taken, well over 200 million packs would have been imported. Bearing in mind that Gibraltar has some 30,000 inhabitants, and ruling out the children, non- smokers and others who are not involved in this trade, it is clear that the numbers do not add up.61 Spain claims that these cigarettes are smuggled back into Spain for sale, tax-free, via cars, pedestrians and on the water.

Chief Minister Picardo acknowledges that tobacco smuggling is a problem and states that his government has put in place “draconian” measures to tackle it.62 These measures include restricting the amount of tobacco that people can be in possession of without a 57 “PSOE motion upsets Partido Popular”, 8 May 2014 58 “Lunchtime queues as Spain steps up border checks”, Gibraltar Chronicle, 21 May 2014 59 “PSOE slams Spanish government over ‘conflict without solution’”,Gibraltar Chronicle, 1 April 2013 60 “We Need to Talk About Gibraltar”, The Wall Street Journal, 19 August 2013 61 Spanish Parliament, Report of Proceedings of the Congress of Deputies Committees, Foreign Affairs, Session No.17, 3 September 2013, 10th Parliamentary term N. 392. A courtesy translation of this statement was supplied by the Embassy of Spain 62 Transcript of “A Conversation with Fabian Picardo”, 7 October 2013, Council on Foreign Relations Gibraltar: Time to get off the fence 29 transportation licence, and the amount of tobacco that can be sold to an individual; restricting the areas where tobacco can be sold; and extending police powers to stop and search cars suspected of smuggling tobacco. However, he also argues that tobacco smuggling is a problem throughout southern Spain and the problems on the Gibraltar border are minimal in comparison with elsewhere. He also claims that Spain ignores the fact that: Gibraltar has 12 million tourists every year, a lot of cross- frontier workers and 12 million tourists in total. When you look at the numbers of cartons of cigarettes that are sold in Gibraltar, they are less than one carton per tourist that comes to Gibraltar.63 63 Ibid. 30 Gibraltar: Time to get off the fence Chief Minister Picardo also argues that Spain is using the tobacco smuggling as a smokescreen for punitive measures against Gibraltar: Gibraltar is doing its bit to control the legitimate aspect of the concerns that there may be about cross-frontier tobacco trade. None of that is recognized. Although our laws are much tougher than the laws in Andorra, et cetera. And it's not recognized, for example, that Gibraltar arrests and prosecutes people on a daily basis for breaching our Tobacco Act. But, when you look at the numbers all of this is completely de minimis compared to the number in Algeciras, in Valencia, Barcelona, et cetera. But, of course that doesn't matter when you want to use political rhetoric to damn a particular territory.64 Could Gibraltar join Schengen?

One possible solution to the border delays is to remove the border altogether, by allowing Gibraltar to join Schengen while the UK remains outside. Since we took evidence from the Chief Minister, he has announced the beginning of a consultation process on Gibraltar’s status in the EU, which will explore the possibility of membership of Schengen and the Common Customs Union.65 Although this consultation is at a very early stage, we can see the merits of this idea. It would eliminate one of the main mechanisms for applying pressure to Gibraltar and would make little difference to the rest of the UK, as Gibraltar is not currently part of a travel arrangement that bypasses UK borders anyway. It could also create goodwill both across the border and in the EU more widely. We must acknowledge that at present the UK might find few friends in Brussels who will sympathise about lengthy border delays in Gibraltar; as one of the only states in Europe not to be part of Schengen, the only time most Europeans encounter border checks in Europe is when they enter the UK. Gibraltar’s accession to Schengen could therefore be one potential means of neutralising this long-standing and major irritant.

When we asked Mr Lidington if the UK Government would consider the possibility of Gibraltar joining Schengen he said that he could envisage the scenario, and commented: As a matter of political principle, I would not object to Gibraltar being more closely integrated in some elements of the EU acquis if that was what Gibraltar wanted. My caveats would be first that this would involve a negotiation, at minimum. Secondly, it might well require changes to the European treaties, because at the moment […] the treaties lay down which elements of the acquis apply to Gibraltar and which do not.66 Spain has not formally commented on how it views the idea of Gibraltar joining Schengen. We suspect that the legal difficulties will be substantial. Joining Schengen is a major step with political and economic implications for Gibraltar that require very careful consideration. In its response to this report, the Government should state its position on 64 Ibid. 65 “Picardo announces consultation on Schengen and Customs Union”, GBC News, 9 May 2014 66 Q136 Gibraltar: Time to get off the fence 31 whether Gibraltar could join Schengen without the rest of the UK, and how it will support the work of the recently-announced consultation. Diplomatic bag incident

Tensions between the UK and Spain over the Gibraltar border were further inflamed in November 2013 when Spanish officials opened two UK diplomatic bags at the border with Gibraltar. According to the Vienna Convention of 1961, diplomatic bags cannot be opened without authorisation from the sending country. The incident prompted an outcry from the UK Government, which said it was the first example of such a breach of diplomatic protocol by one EU state on another. The Foreign Office sought an “urgent explanation” from Spain. Mr Lidington later told the House that Spain had explained that it was "an error at a junior operational level at the crossing point between Gibraltar and Spain and a more senior official put a stop to that interference as soon as he realised what had happened" He added that Spain had promised not to repeat its interference.67 However, reports in the press pointed out that Mr Margallo had nonetheless told reporters that the bag was "not technically diplomatic bags", adding “If it is not a diplomatic bag, there is no diplomatic incident.”68 This account was rejected by the British Government, which said that "There is and should have been no doubt that these bags were the property of Her Majesty's Government, that they were marked as such, and that tampering with the bags was a breach of these principles."69

We are in no doubt that Spain’s measures at the border in 2013 were politically motivated and that it continues to use the border as a coercive tool against Gibraltar. This is entirely unacceptable behaviour by an EU partner and should not be tolerated by the UK. The Government should continue to pursue a stronger response by the European Commission through consistent and sustained follow-up in Brussels. The Government should also encourage further monitoring inspections by the Commission with the minimum possible notice given to both parties. International pressure

In addition to its bilateral measures against Gibraltar, Spain has also sought to enlist international allies. In August 2013, the Spanish media reported that Spain was considering partnering with Argentina to take action against the UK in the UN or even the International Court of Justice.70 Since then, a town in Spain (Algeciras) announced it would be ‘twinned’ with one in Argentina (Rio Grande) as part of an Argentine-led initiative to highlight British “occupation” of the Falklands and Gibraltar (though Algeciras’ mayor was criticised in Spain for making the agreement without consulting local 67 HC Deb, 27 November 2013, cols 261-263 68 “Gibraltar bag incident: Spain ‘promises no repeat’, says UK, BBC News online, 27 November 2013 69 “Gibraltar row: Spain vows not to open any more UK diplomatic bags”, The Guardian, 27 November 2013 70 “Falklands and Gibraltar: Spain considering a joint front with Argentina at UN, says Madrid media”, MercoPress, 12 August 2013 32 Gibraltar: Time to get off the fence authorities).71 Spain has also used international and multilateral forums to press its case against Gibraltar, and to use their mechanisms to exclude Gibraltar or otherwise bring pressure to bear on the territory: Action in European Union institutions

The EU infamously has an “allergy” to sovereignty disputes and tries to avoid becoming involved in them. Spain has nevertheless tried, with some success, to use EU institutions to complain about or exclude Gibraltar. It has most recently done this in the case of the EU’s aviation legislation, despite its commitment not to use this measure under the Cordoba Agreement. Withdrawal from Cordoba Agreement

The 2006 Cordoba Agreement resolved a number of important issues for both Gibraltar and Spain, including pensions, communications, and aviation (see paras 10-11, above). In 2013, however, Spain informed the UK that it would no longer comply with one of its Cordoba Agreement commitments relating to aviation, and would once again seek to exclude Gibraltar from EU aviation legislation.72 This is significant because if Gibraltar is excluded from EU aviation legislation it potentially limits the use of its airport (which was expensively upgraded following the Cordoba Agreement) and restricts the number of airlines that will use the airport. Over the last year Spain has repeatedly opposed the inclusion of Gibraltar in new aviation legislation. Mr Lidington told us that the UK had fought back in 2013 by threatening to veto a proposed EU-Ukraine aviation agreement if Spain tried to exclude Gibraltar from it.73 We note that the European Scrutiny Committee has asked the Government for further information on the EU-Ukraine aviation agreement because it is concerned about the Gibraltar issue. The Committee concluded that “We understand that Spain appears reluctant to accept the Agreement as it stands. So we are keeping the documents under scrutiny pending further information on the situation.”74 However, Spanish MEPs succeeded in March 2014 in amending draft legislation for the Implementation of the ‘Single European Sky’, which will harmonise air traffic over Europe, to exclude Gibraltar.75 This legislation is not yet finalised; it is subject to further consideration and negotiation between the European Parliament and the Council of the European Union.

Mr Picardo pointed out Spain has thereby withdrawn from its side of an agreement under which the UK has paid over £70m in pensions: “Spain resiled from the agreement, but the British taxpayer—rightly, because the United Kingdom performs on its 71 “Spanish and Argentine towns twin in protest over Falklands and Gibraltar”, The Telegraph, 2 April 2014 72 HL Deb, 11 February 2013, col 107W 73 Q152 74 European Scrutiny Committee, First Report of Session 2014-15, Documents considered by the Committee on 4 June 2014, HC 219-I 75 “EU vote first step to rock exclusion from aviation measure”, Gibraltar Chronicle, 13 March 2014 Gibraltar: Time to get off the fence 33 agreements—continues to pay.” 76 Spain has also threatened to withdraw from other aspects of Cordoba, though it has not yet done so. Cordoba is a non-binding agreement, which is not enforceable in international law, but the UK Government has assured Parliament that it would do all it could to hold Spain to its other commitments under the Cordoba Agreement.77 The Government has also emphasised that it is against Spain’s “importation” of the Gibraltar dispute into the mechanisms of EU institutions more generally. Mr Lidington told us: Certainly when it comes to European Union negotiations, the standing instructions from the Foreign Secretary and me are that officials in UKRep and elsewhere are to be very alert for any attempt to exclude Gibraltar or adversely affect Gibraltar in the terms of European Union law as it is being drafted.78

We are particularly concerned by Spain’s withdrawal from some aspects of the Cordoba Agreement, representing a significant backward step in relations with Gibraltar, and the UK. As Spain tries to apply pressure via EU aviation legislation, the UK Government should ensure that its EU partners are fully aware that Spain has reneged on an agreement negotiated in good faith, under which the UK has paid over £70 million to Spanish citizens. By continuing to abide by its obligations under the Cordoba Agreement, the UK Government has put itself in a strong position to give weight to this argument. Action at the United Nations

Spain has sought to use the United Nations to advance its arguments about Gibraltar’s sovereignty. Spain considers the dispute to be one of ending colonial power in foreign territories, and cites a number of UN resolutions on Gibraltar, secured in the 1960s and 1970s, in support of its arguments. In an address to the Spanish Foreign Affairs Committee, Mr Margallo said that these Resolutions made three key points: that that Gibraltar is “a non-self-governing territory that is subject to decolonisation”; that such decolonisation should be in accordance with the principle of territorial integrity and not that of self-determination; and that it should be achieved by means of bilateral negotiation.79 The UK disputes all three of these points, noting particularly that Gibraltar is a self-governing territory with a constitution, legislature and government.

It is also notable that despite these arguments, Spain also maintains its own Overseas Territories in North Africa, Ceuta and Melilla. These two separate territories are located on Morocco’s north coast and have been a source of tension between Spain and Morocco, which claims the territories as its own. Spain insists that their case is different to that of Gibraltar, as Ceuta and Melilla are an integral part of Spanish territory and have the same 76 Q114 77 HL Deb, 11 February 2013, col 107W 78 Q152 79 Spanish Parliament, Report of Proceedings of the Congress of Deputies Committees, Foreign Affairs, Session No.17, 3 September 2013, 10th Parliamentary term N. 392. A courtesy translation of this statement was supplied by the Embassy of Spain. 34 Gibraltar: Time to get off the fence status as semi-autonomous regions as those on the mainland, whereas Gibraltar is not constitutionally part of the UK and, it argues, has been recognised as a “colony”. Spain’s claims on Gibraltar are undermined by its defence of its own overseas territories in North Africa. The Spanish Government’s arguments about the constitutional differences between Ceuta and Melilla and Gibraltar are unconvincing at best, and leave Spain open to the charge of hypocrisy. Gibraltar: Time to get off the fence 35 4 Assessing the UK Government response

Spain is an important EU and NATO partner, and it co-operates with the UK on a number of strategic priorities for the UK Government, including counter-terrorism and drug smuggling. Since 2001 the UK has pursued a strategic partnership with Spain, establishing bilateral forums for dialogue.80 Relations between our populations are also strong: 14 million British nationals visit Spain each year, and one million live there.81 During our recent visit to Malaga to assess FCO consular facilities, we saw first-hand how large numbers of British expatriates are made welcome by the Spanish population and Government.

The actions of the Spanish Government over the last three years have therefore 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, and it is understandable that the UK Government does not want the dispute over Gibraltar to damage this. However, the UK Government also has responsibilities toward Gibraltar and cannot ignore actions by Spain that are intended to make the lives of Gibraltarians difficult.

Perhaps in the light of these dual interests, when responding to provocative actions by Spain the UK Government has time and again called for a calm approach to reduce tensions. In July 2012 Lord Howell told the House of Lords that the “best way forward” was to press the Spanish Government carefully and “avoid raising the temperature.”82 Mr Simmonds repeated this when giving evidence to the Committee, commenting that: “We are not convinced that ratcheting up either the rhetoric or [...] moving to a more aggressive gunboat diplomacy would in fact be a positive or responsible step to take.”83 Even at the end of his very robust statement to the House on Gibraltar’s border and maritime problems in summer 2013, the Foreign Secretary said, “The Government’s aim is to de- escalate the tension, so that Gibraltarians can go about their business unhampered and free of intimidation.”84

The Government has emphasised that it considers this approach to be in Gibraltar’s interests, as it prevents further escalation. The Government has at the same time repeatedly made strong statements of its commitment to Gibraltar’s freedom and security. It has also resolutely confirmed the ‘double lock’ that prevents the UK from entering into any negotiations on sovereignty without the consent of Gibraltarians. Mr Lidington, Minister for Europe, said on 11 June 2012: 80 Eleventh Report of Session 2001-02, Gibraltar, HC 973, para 25 81 Q148 82 HL Deb, 16 July 2012, Cols 6-7 83 Q20 84 WMS 3 September 2013 …… HC Deb, 2 September 2013, col 11WS 36 Gibraltar: Time to get off the fence Successive Spanish Governments have made representations to the Government about Gibraltar since May 2010. We have made clear on numerous occasions the UK's position on sovereignty has not changed and will not change. The UK will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another State against their wishes. Furthermore, the UK will not enter into a process of sovereignty negotiations with which Gibraltar is not content. We remain committed to furthering co-operation between Gibraltar and Spain through appropriate arrangements for dialogue which are acceptable to Gibraltar.”85

Mr Picardo acknowledged the UK Government’s language is now more robust than it had been for 30 years. 86 Nonetheless, Mr Simmonds acknowledged to us that there was “a feeling in some parts of the Gibraltarian Government that we need to take a firmer line.”87 Chief Minister Picardo made this very clear in his evidence to us, stating: The Spanish President and the Spanish Foreign Minister often say, when they are taken to task about Gibraltar, that the relationship with the UK is “excellent, despite Gibraltar.” It is important that people should wake up to the fact that Spain is doing that and feels that she can do that without having that sentiment in any way countered by British Ministers. Spain cannot get away with thinking that she can punish and damage Gibraltar at her whim and still say that the relationship with the UK is excellent.88

Spain is a key partner for the UK both bilaterally and in the EU and NATO. It is a testament to the importance that both states place on the bilateral relationship that it remains strong despite our differences. However, Spain should not be able to pursue aggressive policies toward Gibraltar without consequences for its relationship with London.

The Government has taken a cautious approach until now in order to ‘de-escalate’ tensions. Mr Lidington pointed out that this approach recognised that Spain was in a position to apply even more pressure to Gibraltar, if provoked: It is also important, however, that we seek to avoid a situation in which Gibraltar ends up being worse off than it is at the moment. […] The facts of geography mean that it is relatively easy for Spain, if she were to be that maliciously intent, to squeeze Gibraltar more tightly, […] we have to continue with a diplomatic approach89 Mr Lidington added that the UK Government also had to bear in mind the interests of all of its citizens, and said that it would not, for example, block EU legislation that was in the interests of the EU only to annoy Spain. He denied that the UK was allowing Spain to 85 HC Deb, 11 June 2012, col 230W see also HC Deb, 6 February 2012, col 52W 86 Q107 87 Q21 88 Q102 89 Q162 Gibraltar: Time to get off the fence 37 “simply do whatever it likes” and said that the UK’s messages about Gibraltar had been delivered very clearly to Spain. He added that the UK Government “certainly do not rule out any measure that is necessary to defend Gibraltar from a genuine threat to its security or defence”.90 Mr Lidington assured us that any request by the Gibraltarian government for stronger measures would be given consideration, but said there was “no blank cheque” from the UK.91

Although calculated and at times laudable in its restraint, the Government’s approach has not so far produced acceptable results for the people of Gibraltar. This failure was summed up by Mr Picardo: “A year and a half later, we have not engaged in ad hoc dialogue and we have not gone back to trilateral dialogue. The queues are longer and the incursions just as bad.”92 Does Spain care more than the UK about the Gibraltar dispute?

Gibraltar is considered to be one of Spain’s priorities in its foreign policy, while it is generally acknowledged to be somewhat lower on the UK’s foreign policy agenda. Chief Minister Picardo told us that for Spain, Gibraltar was “the foreign affair”: They have a huge level of concentration of resources on the subject, they are able to react immediately, they are prepared for any contingency and they have a level of understanding and preparedness at every level of Spanish diplomacy in relation to Gibraltar that we do not have in the British Foreign Office at the moment. We have a Department that deals with these issues under the Europe directorate as best it can with the resources available to it.93 Jill Morris, Director of Europe for the FCO, assured us that “our embassies around the world have standing instructions to ensure that they are promoting the interests of Gibraltar and protecting the interests of Gibraltar, including intervening in the media where necessary.”94

The Chief Minister also commented on a particular lack of resources in the Governor’s office in Gibraltar, stating: We have seen a reduction in the staff available to the Governor’s Office in recent years, at the same time as, unfortunately, we have seen the issues with Spain become increasingly problematic. […] The work and activity that needs to be undertaken by the Governor’s Office in Gibraltar to fulfil the constitutional obligation and report back to the United Kingdom and work with the Government of Gibraltar has therefore grown exponentially. In my 90 Q163 91 Q174 92 Q118 93 Q112 94 Q62 38 Gibraltar: Time to get off the fence view, we are suffering at the moment a lack of resources in that particular area of industry.95 When we challenged Mr Lidington on this, he disagreed with the Chief Minister’s assessment and said that the Governor’s office was currently supported by a staff of two UK-based diplomats and eleven locally engaged staff, while the British Embassy in Madrid had staff that spent “a considerable amount of time” on Gibraltar issues. He added that “One of my senior officials maintains regular telephone and e-mail contact, personally, with the Chief Minister.”96 Alex Hurst, Deputy Head of the Europe-Mediterranean Department at the FCO, told us that there were a four people in the Gibraltar team in London.”97

Some observers have suggested that not enough ministerial time has been spent in Gibraltar. Mr Lidington told us that he had visited Gibraltar only once during his four years as the responsible minister, but that he intended to go again this year. On 17 June he told the House that he intended to visit again “in the near future”.98 Other ministers have also visited Gibraltar, including Mark Francois, Minister of State for the Armed Forces in December 2013, and Danny Alexander, Chief Secretary to the Treasury, who visited in April 2014. Giving evidence to us before Mr Alexander’s visit, the Chief Minister acknowledged that there had not been a high-level minister in Gibraltar and agreed that a visit would be worthwhile, but noted that he had met ministers on his visits to the UK, and believed he had received “fulsome support whenever I have needed to see them, even at short notice.” He also pointed out that he had had two opportunities to meet the Prime Minister, which had not been afforded to many of his predecessors.99

Ministerial visits are an important display of support to the people of Gibraltar, as well as a signal to Spain of the UK’s continued commitment. We recommend that, in the light of the difficult twelve months that Gibraltar has experienced, the Government consider a high-level visit to Gibraltar before the end of this year and we welcome the fact that the Minister for Europe will be visiting shortly.

We turn now to the actions the Government has taken in response to particular policies pursued by the Spanish government against Gibraltar. Diplomatic protests and summons

The Government emphasised to us that it responds to each unacceptable action by Spain with a proportionate diplomatic protest. These are usually delivered in the form of a written protest from the British Embassy in Madrid to the Spanish Government. Over the last two years, they have most commonly been used to protest about maritime incursions. The protests form an ‘audit trail’ demonstrating the continuous exercise of British 95 Q93 96 Q123 97 Q155 98 HC Deb, 17 June 2014, col 955 99 Q92 Gibraltar: Time to get off the fence 39 sovereignty over BGTW, should the UK ever need to prove this in an international court.100 The below chart shows the number of illegal maritime incursions and the number of diplomatic protests in each month since January 2011: 80 70 60 50 40 30 20 10 0

Not every incursion warrants an individual protest. The FCO classify incursions into three categories: Category A: incursions constituting a threat to UK sovereignty (i.e. a deliberate attempt by Spain to show that it is exercising jurisdiction within BGTW) Category B: incursions constituting a violation of British sovereignty (i.e. a Spanish boat patrolling and changing course and speed in BGTW instead of maintaining a direct course through the territorial waters) Category C: vessels exercising a right of innocent passage (not counted as an incursion in the graph above). Mr Lidington explained that Category A incursions prompted a protest from the FCO within 48 hours, while Category B incursions were sometimes grouped into a single protest, and were delivered roughly once a month.101 We were troubled to learn from Mr Lidington that, at a time when actions were increasing, there were some weeks in early 2014 when incidents were wrongly categorised and not dealt with appropriately by the Embassy in Madrid, meaning that protests were not delivered as quickly as they should have been. Mr Lidington assured us that he had taken action to correct this.102

We asked for the March 2014 record of incursions and protests, in order to see the FCO’s processes at work. We were disappointed to find that although there were 37 illegal incursions in March, the FCO did not deliver any related protests during the calendar 100 Q112 101 Q156 102 Ibid. 11-NAJ 11-RAM 11-YAM 11-LUJ 11-PES 11-VON 21-NAJ 21-RAM 21-YAM 21-LUJ 21-PES 21-VON 31-NAJ 31-RAM 31-YAM 31-LUJ 31-PES 31-VON 41-NAJ 41-RAM INCURSIONS AND PROTESTS Number of Illegal Incursions Protests 40 Gibraltar: Time to get off the fence month. All of the protests for March except one were delivered on 8 and 9 April, the week after our evidence session with Mr Lidington, in which we asked for records. Only one protest was delivered within two days of the relevant incursion.103 When we enquired further about the March records, it emerged that there were seven Category A incursions in March 2014, six of which were not protested within 48 hours, and were in fact delivered in April, up to four weeks later.

The Government has also lodged 34 diplomatic protests on non-maritime issues with the Spanish government between 2011 and 2014. Most of these (26 of 34, or 76%) were on border delays; other protests were on topics including the conservation zone, the work on the airport, the designation of Gibraltarian waters as a Site of Community Interest (see paras 76-79), and the diplomatic bag incident in November 2013.104

We agree with the Government’s policy of protesting formally about every incursion into British Gibraltarian Territorial Waters. However, we are concerned that in carrying out this policy, the Government focuses more on the long-term need to establish an audit trail than it does on the immediate need to register a real protest with the Spanish authorities. When the UK delivers protests about maritime incursions three or four weeks after the actual incident, it robs those protests of any force they might have had and gives the impression of an official simply ‘going through the motions’. This might be acceptable at a time of relative harmony, but during this period of heightened pressure on Gibraltar, the Government should re-assess its internal deadlines for delivering diplomatic protests. We recommend that it put in place procedures under which all diplomatic protests to Spain about Gibraltar are delivered within a maximum of seven days. Summoning the ambassador

The UK has summoned the Spanish Ambassador to the UK to the Foreign Office five times in the last two years to protest over Gibraltar issues. The FCO described such summonses as “a particularly serious and exceptional step to take”.105 We asked the Foreign Office for a list of ambassadors it had publicly summoned, and it was striking to find that a strong European and NATO ally should be in the same group as Syria, Iran and North Korea. Only Syria has been summoned more times than Spain, and no other EU state has been subject to this extraordinary measure in the same time period: 103 Foreign and Commonwealth Office (GIB0002) and Foreign and Commonwealth Office (GIB0008) 104 Foreign and Commonwealth Office (GIB0002) 105 Ibid. Gibraltar: Time to get off the fence 41 1 KENYA; YEMEN; MALAWI; URUGUAY; BELARUS; ARGENTINA; ISRAEL; UKRAINE; RUSSIA; BURMA 2 IRAN 3 NORTH KOREA 4 LIBYA 5 SPAIN 6 SYRIA Number of times summoned 0 1 2 3 4 5 6 7

It is hard to discern whether this high number of summonses is a positive signal that the FCO is taking robust action, or whether it is a sign that the measure is not working and is rather seen in Spain as a mere slap on the wrist. We nonetheless consider that the Government is right to take exceptional measures such as summoning the ambassador in cases where there has been a breach of international law or particularly concerning incident related to Gibraltar. We recommend that if the situation does not show signs of improvement, the Government should re-assess its criteria for summoning the Spanish Ambassador and should consider doing so more frequently to reflect its ongoing concern about the unacceptable status quo. Representation in the EU

Gibraltar has a unique position in the European Union: it has been in the EU since 1973 as part of the UK’s membership so EU law is applicable to Gibraltar, though it is excluded from four major areas of EU policy (Customs Union, Common Commercial Policy, Common Agriculture Policy, Common Fisheries Policy and requirement to levy VAT). Although the Gibratlarian government is responsible for transposing EU law to apply in Gibraltar, the UK Government remains responsible for Gibraltar’s external relations, including its representation in the European Union. David Lidington told the House in November 2013 that “The most important thing that we can do with fellow members of the European Union and other allied counties–indeed this is what we have been seeking to do–is draw their attention to the fact that Gibraltar is not some exploited colony: it is a self governing territory whose people have time and again freely expressed their wish to remain under the sovereignty of the United Kingdom.”106 FCO official Jill Morris told us that the UK’s Permanent Representation in Brussels is “continually lobbying the Commission and explaining the situation” with regard to Gibraltar’s sovereignty.107 106 HC Deb, 27 November 2013, Col 265 107 Q62 etatS Ambassadors publicly summoned to the FCO September 2010 to May 2014 42 Gibraltar: Time to get off the fence The FCO has also stated that it has been in “frequent contact” with the Commission regarding border delays in particular, and it has discussed these at a Ministerial level as well as the senior official level.108

Gibraltar has complained in the past that UK civil servants or diplomats in Brussels are not sufficiently aware of Gibraltarian issues, and do not consult Gibraltar until a late stage (if at all). Mr Picardo stated: Then we have to try and educate those particular Departments, and they may not just be in the Foreign Office, that they need to be aware of Gibraltar and the Gibraltar dimension—particularly in the context of European legislation, whether it is directives, regulations or any other aspect of our relationship with Europe—and that they need to communicate with the Government of Gibraltar and they need to involve us at an early stage. Of course, we are a small Executive and a small legislature, and that is hugely challenging for us.109 However, Mr Picardo said that Gibraltar understood the need for it to develop its own expertise as well, and consequently it had invested heavily in its Europe department.

This understanding came about in part due to a recent significant failing in the UK’s protection of Gibraltar and promotion of its interests. As noted in paragraph 70 above, in 2009-10 the UK Government failed to realise that Spain had applied to the European Commission for it to designate almost all of BGTW as a Site of Community Interest (SCI). The FCO states that the application was conveyed to the UK among hundreds of other routine applications, and the Commission did not alert the UK to the overlap with its territorial interests, as the UK expected it would. The UK therefore did not take its opportunity to object to this proposed designation, which was duly agreed in 2010. By the time the UK realised its mistake, it was too late to reverse the process. [A timeline with details of this incident can be found in Annex B]

The UK and Gibraltar both took the Commission to the European Court in 2010-12 to try to overturn the designation, but they lost the case. They nonetheless state that they do not recognise the designation, which they say has no legal force or consequence.110 The UK insists that the designation does not constitute default recognition by the EU of Spanish sovereignty over the waters. Nonetheless, Spanish research vessels have used the designation of BGTW as an SCI as their justification for conducting incursions into BGTW, setting a dangerous precedent.

Mr Lidington told us that the awareness of “the Gibraltar angle” in the UK’s work at the EU had improved over the last four years, adding: Certainly when it comes to European Union negotiations, the standing instructions from the Foreign Secretary and me are that officials in UKRep 108 HC Deb, 12 June 2014, col 267W 109 Q95 110 Oral evidence taken on 11 December 2012, HC 752-i, Q22 [Mr Simmonds] Gibraltar: Time to get off the fence 43 and elsewhere are to be very alert for any attempt to exclude Gibraltar or adversely affect Gibraltar in the terms of European Union law as it is being drafted. 111 The Gibraltarian government has since announced plans to increase its presence in Brussels and in Washington DC, in order to ensure a higher profile for Gibraltar.112

The failure to prevent British Gibraltarian Territorial Waters from being designated a Site of Community Interest by Spain was a significant mistake which has proven impossible to reverse. The FCO should set out the action it has taken since this incident to ensure that Government departments consider Gibraltar, and Overseas Territories more generally, when representing the UK at EU level. Prospects for taking the Gibraltar border dispute to the European Court

The FCO told us that it had considered taking steps against Spain over the border dispute under Article 259 of the Treaty on the Functioning of the European Union. Article 259 allows for one member state to initiate proceedings against another member state for violation of EU obligations. Member States usually ask the European Commission to bring cases rather than initiating them themselves so this would be an unusual but not unprecedented measure to take; Article 259 has been used on six previous occasions by a member state to bring an action against another.

By imposing restrictions at the border, Spain may be considered to be in violation of the free movement of people, as well as the Schengen Borders Code. The Borders Code provides for the abolition of internal borders between signatory states, and a single set of rules for checks at “external borders”. According to the Code, EU citizens undergo a minimum check (a rapid and straightforward verification of identity) when crossing an external border, and checks should be “proportionate”. Under these rules, the state is also responsible for ensuring “the safety and smooth flow of road traffic”.113

Spain has already used Article 259 to bring a case relating to Gibraltar before the European Court, when it brought a case against the UK in 2006 regarding the UK’s provision of European Parliament elections voting rights to the citizens of Gibraltar. Spain objected to the extension of voting rights to ‘qualifying commonwealth citizens’ who are not UK citizens and to the inclusion of Gibraltar within an existing electoral region in England. The action was dismissed by the Court on both counts, ruling that no EU legislation had been infringed. Unusually, the European Commission decided not to issue a reasoned opinion due to the political sensitivities involved.

Mr Lidington repeatedly highlighted to us the Government’s hopes that the ongoing European Commission investigation into Gibraltar’s border problems will secure some improvement to the situation. However, he confirmed that the UK did not rule out the 111 Q152 112 “Government set to increase international lobbying work”, Your Gibraltar TV, 19 May 2014 113 Schengen Borders Code Annex VI 44 Gibraltar: Time to get off the fence possibility of legal action in the EU courts if the Commission’s investigation does not reach a satisfactory conclusion, though he warned that legal cases could take a long time to come to court, and: There is never a guarantee of winning any litigation. I don’t think I am revealing too much in saying that we were not surprised when the Court of Justice decided to make a judgment on a technicality that avoided it having to get involved in the sovereignty dispute. I think EU institutions generally and other member states generally want to treat the problem between the UK and Spain as a bilateral one, and do not want to become too closely involved.114

The Government should keep the option of using Article 259 to take Spain to the European Court under review, pending the final results of the Commission’s investigation into the situation at the border. If the situation at the border does not improve within the next six months then the UK should make it clear that it intends to begin legal proceedings against Spain under Article 259. Representation at the UN

The greatest issue for Gibraltar at the United Nations is its enduring position on the UN list of Non-Self-Governing Territories. Our predecessor Committee’s reports on Gibraltar all urge the UK to make progress in securing its removal, and the UK Government has made repeated attempts to secure its removal from the list. Mr Lidington told us that the UK had improved the awareness of Gibraltar in its own work at the UN in the last four years, as well as increasing its presence, stating: At the United Nations, for example, we have very deliberately encouraged the Chief Minister and representatives of Gibraltar citizens to go along and make their comments directly to the decolonisation committee on behalf of the people of Gibraltar, and not just leave it to UK diplomats to do that job.115 He added that the UK Government had to: continue also to highlight internationally the fact that our sovereignty over Gibraltar does not stem from some outmoded conception of colonialism, but from the repeated democratically expressed wishes of the people of Gibraltar themselves.116

The Government of Gibraltar itself has been active in efforts to remove Gibraltar from the list. Most recently, in May 2014, Minister Joe Bossano told the United Nations Special Committee that Spain was running a campaign to deprive Gibraltar of its right to self- determination, based on arguments identical to those the fascist government in Spain had held decades ago. He urged the Committee to consider Gibraltar as a colonial people with their own constitution and a separate cultural identity to that of the rest of the UK, with the 114 Q183 115 Q152 116 Q162 Gibraltar: Time to get off the fence 45 right to exercise self-determination and to choose for themselves.117 In June 2014, Chief Minister Fabian Picardo repeated this message in an address to the United Nations Special Committee on Decolonisation, when he complained that Gibraltar was met with “deafening silence” from the Committee.118 The Government should robustly oppose continued attempts by Spain to use international institutions as a means of securing international support for its case. We again urge the Government to take steps to remove Gibraltar from the UN list of non-self-governing territories. The Government should set out in its response to this report what action it is taking in order to do this. Alternative means of applying diplomatic pressure

Some observers have suggested that the UK should make more use of opportunities to impede Spain from achieving international goals as a way to demonstrate the costs of its actions against Gibraltar. For example, Sir Graham Watson, then MEP for Gibraltar, was recently reported as having said that during the border troubles in 2013, the UK Government drew up a list of thing it could do to retaliate. He reportedly claimed that as part of this, Prime Minister David Cameron warned Spain that the UK would block its bid for the 2020 Olympic Games (later won by Tokyo).119 However, this report was denied by the UK Government, which said “as has always been the practice, the UK Government did not favour any of the three finalists over the others and there was absolutely no attempt to influence the bids.”120 Similarly, when we asked David Lidington if the UK Government would consider withholding UK support for Spain’s current bid to join the UN Security Council, he told us that the UK had a “longstanding policy of not revealing its voting intentions in UN Security Council elections” and that the Government “carefully consider[s] all bids on their merits, taking into account candidates contributions to the Security Council and to the United Nations more broadly.”121 The Government should seek to identify areas of non-essential cooperation and occasions on which British assistance would be helpful to Spain (for example, Spain’s bid for membership of the UN Security Council) and make the UK’s support dependent on improvements to the situation in Gibraltar. Royal Navy and military presence

The Royal Navy maintains a small operational front line squadron in Gibraltar to contribute to its maritime defence and security and, where necessary, the prosecution of offensive maritime operations. The Government states that the Royal Navy upholds British sovereignty “by challenging all unlawful incursions by vessels of the Spanish state, through radio warnings and the close monitoring of all such vessels, until they leave British 117 Speech by Rt Hon Joe Bossano at the ‘Pacific Regional Seminar’, 21-23 May 2014, United Nations Special Committee on Decolonisation 118 “Committee Hears from Petitioners, Observers on Questions of Western Sahara, Gibraltar”, United Nations Special Committee on Decolonisation press release GA/COL/3268, 16 June 2014 119 “Watson claims London scuppered Madrid’s Olympic bid over Gibraltar”, GBC News, 16 May 2014 120 “HMG denies Sir Graham Watson claim”, GBC, 17 May 2014 121 Foreign and Commonwealth Office (GIB0008) 46 Gibraltar: Time to get off the fence Gibraltarian Territorial Waters.122 Royal Navy vessels ‘shadow’ vessels performing incursions until they leave, and there have been recent reports in the press of using helicopters low over vessels performing incursions to incite them to leave.

Gibraltar also acts as a naval base for ships and submarines en route to and from deployments in the Gulf or Africa, and receives regular visits from British and NATO ships each year. Mr Picardo has repeatedly stated that an increased military presence in Gibraltar would provide reassurance to Gibraltarians as well as an important deterrent effect. He told us that larger assets in Gibraltar—not deployed aggressively, but simply deployed to demonstrate that these are British waters by going about their own business and not in any way confronting anyone else—would be hugely positive in ensuring that the UNCLOS position is understood not just de jure, by way of notes every time there is an incursion, but de facto on the water.123 The Government has so far resisted calls to station larger naval vessels permanently in Gibraltar, though in February 2014 it deployed additional personnel to Gibraltar to enhance the response capability and resilience of the Royal Navy Gibraltar Squadron.124 The Government has also repeated that Royal Navy warships will continue to call regularly at the Rock, reflecting its utility as a permanent joint operating base. In the course of this inquiry, we have noted that a considerable number of Royal Navy vessels have visited Gibraltar over the last few months, including HMS Somerset in January 2014 and HMS Diamond in February 2014. While in Gibraltar, we were able to appreciate the conspicuous reassurance such vessels provide to a population that regularly witnesses illegal incursions by foreign vessels. We commend the Government’s policy of choosing to use Gibraltar as a stop off point for naval vessels in transit as a sensible and effective measure. NATO restrictions

Despite being a full NATO partner alongside the UK, Spain continues to refuse to allow direct military movements or communications between Gibraltar and Spain. NATO Standardised Agreement (STANAG) 1100 sets out the arrangements for transits to NATO ports and naval ships of NATO members. In 1989, Spain inserted a reservation to prevent visits by NATO ships to or from Gibraltar directly from Spanish ports. Similarly, the UK Government has confirmed that any request by military aircraft from NATO (or other) nations to overfly or land in Spain, which has Gibraltar as a departure or arrival airfield is also routinely denied by Spanish authorities, though the Spanish authorities are “swift and cooperative” in allowing British military aircraft to pass through Spanish airspace to any other destination.125 Spain also bans direct communication between the British Military in 122 HC Deb, 6 January 2014, col 179W 123 Q109 124 HL Deb, 29 January 2014, col 234W 125 HC Deb, 18 November 2013, col 699W and HL Deb, 18 June 2014, cols 63WA Gibraltar: Time to get off the fence 47 Gibraltar and the Spanish Armed Forces. Mr Picardo described the situation as “lamentable” and expressed confusion over the UK Government’s lack of response: Why must Spain for one moment think that there is anything wrong with the United Kingdom using her own military facilities in Gibraltar for her own purposes? Why must Spain somehow discriminate against an ally for that reason? Why doesn’t British diplomacy say, “Enough”? Why? I am yet to be persuaded by anyone of a good reason, affecting western democracies generally, for why we shouldn’t be making the position very clear to Spain. 126

The ongoing restriction has been raised by our predecessor Committees in four previous reports on Gibraltar. On each occasion, the FCO has stated that it agrees that the restriction is unacceptable and efforts to overturn it were ongoing.127 In April 2014, the Foreign Secretary told us that the FCO was “not passive on these issues”.128 However, when we questioned Mr Lidington in April 2014 about Spain’s continued imposition of restrictions, he said that the UK simply worked around it: We do not think that raising this at NATO is going to be the appropriate way forward. Precisely because this has been a long-standing, very regrettable practice by Spain, this is not getting in the way of sensible, practical, NATO operational planning. The Royal Navy and the Royal Air Force have built the STANAG reservation into their planning arrangements for many years. I am advised by the MOD that this has minimal if any impact upon operations.129 Mr Lidington also noted that other NATO allies—including Canada, the US and Norway last year—regularly use Gibraltar for operational reasons. He concluded: “I think this is a practice by Spain that we regard as an irritant. It is bad practice, but it is not getting in the way of proper operational planning or activity.”130 In a later letter, Mr Lidington added that “we do regularly make clear to Spain that this is not the sort of impediment that close allies should have to manage.” However, he said the UK addressed the issue at a bilateral level and did not raise it at the NATO Council or other NATO bodies, stating “This is in line with the policy of this and previous governments that NATO is not the appropriate forum for pursuing bilateral disputes.”131

The arrangement has been criticised by some observers from NATO ally countries: a recent report by the conservative US based think tank the Heritage Foundation criticised 126 Q119 127 Foreign Affairs Committee, Fourth Report of Session 1998-99, Gibraltar, HC 366, para 95; Foreign Affairs Committee, Ninth Report of Session 1999-2000, Gibraltar: Follow-up, HC 863, para 8; Foreign Affairs Committee, Eleventh Report of Session 2001-02, Gibraltar, HC 973, para 127; Foreign Affairs Committee, Seventh Report of Session 2007-08, Overseas Territories, HC 147-I, paras 401-404, 414 128 Oral evidence taken on 18 March 2014, HC (2013-14) 1150, Q48 [Mr Hague] 129 Q200 130 Q200 131 Foreign and Commonwealth Office (GIB0008) 48 Gibraltar: Time to get off the fence Spain for continuing to allow Russia to use its port in Ceuta, one of its two territories in North Africa, at the time of the Ukraine crisis. The report noted the continuing restriction on NATO vessels travelling to or from Gibraltar, and concluded that “Spain’s policy off allowing the Russian navy to use Ceuta in North Africa is also hypocritical in relation to its reluctance to allow visits from NATO ships to or from the British Overseas Territory of Gibraltar directly to or from Spanish ports. Therefore, under certain circumstances Spain would rather have a Russian ship visit a Spanish port than a NATO ship”.132

We were also concerned to hear that a Norwegian research vessel had been refused entry to Las Palmas in September 2013 because its last port of call had been Gibraltar. When we pressed the UK Government to explain this case, involving a private vessel, it told us that Spanish law considers all research vessels to be state vessels, even if commercially owned, so this was “in line with existing restrictions” and did not represent a further extension of Spain’s NATO reservation.133

We are disappointed that so little progress has been made in the last 16 years toward lifting Spain’s NATO reservation against ships travelling between Spanish and Gibraltarian ports. The UK should actively seek for Spain’s NATO reservation on Gibraltar to be overturned and set out in its response to this report how it intends to do so. The Government should also set out any steps it has taken to solicit support from other NATO partners who are inconvenienced in operational matters by Spain’s restriction on Gibraltar. 132 Heritage Foundation, Issue Brief 4226, 20 May 2014 133 Foreign and Commonwealth Office (GIB0001) Gibraltar: Time to get off the fence 49 5 Conclusion

We do not believe that any Spanish government is likely to renounce its sovereignty claims to Gibraltar in the foreseeable future, but the stance taken by the current Spanish government appears particularly aggressive when it comes to imposing penalties on Gibraltar. We were struck when we visited Gibraltar by the sense that its citizens felt under siege. We consider that the pressure currently being applied on Gibraltar by Spain, through the imposition of delays at the border, unwarranted maritime incursions, and diplomatic pressure in international institutions amounts to a campaign of harassment and intimidation.

Not only is this unacceptable in a close EU partner, it is also counter-productive, as it only hardens Gibraltarians’ feelings toward Spain. Spain must understand that any hope it has of settlement will only be achieved with the goodwill and consent of the people living on Gibraltar. If Spain is indeed using the Gibraltar dispute as a means of drumming up populist sentiment at the expense of the quality of life of Gibraltarians, this is a deeply cynical form of politics.

With little prospect of reaching a settlement of the core sovereignty dispute, the UK Government’s task is to reach an acceptable status quo for the people on Gibraltar. At present, the status quo is far from acceptable, and there is a pervasive feeling in Gibraltar of being under siege by a bullying and unreasonable power, as well as frustration at the lack of progress. The UK Government has shown restraint in response to provocation by Spain. It was right to do so: but the UK’s approach of consistently trying to de-escalate tensions in the face of mounting provocation has also achieved little discernible effect, aside from giving Gibraltarians the impression that not enough is being done. It is now time for the UK Government, with the agreement of the Government of Gibraltar, to think again about what measures can be taken to discourage Spain from exerting pressure on Gibraltar.

However, the limited measures we have recommended in this report reflect the fact that the UK Government has a narrow scope for action in this regard. It would be counter- productive to engage in tit-for-tat squabbles and there is no desire on the part of the British or Gibraltarian governments to escalate the dispute. The most responsible course is for the Government to review and intensify the mechanisms for diplomatic pressure that it is already using, in light of the continuing provocation by the Spanish government. In this context, we have recommend in this report that the UK Government should: Robustly oppose Spain’s attempts to use international institutions Revive efforts to remove Gibraltar from the UN list of non-self-governing Territories Increase the speed with which it delivers diplomatic protests, and review criteria for summoning the ambassador 50 Gibraltar: Time to get off the fence Identify areas of non-essential cooperation and make the UK’s support for Spain’s international initiatives dependent on improvements in Gibraltar.

Finally, while intensifying the diplomatic pressure, the Government should make clear to the Spanish Government that there is much goodwill between our peoples and a real desire on the part of the British government to re-start dialogue. Gibraltar: Time to get off the fence 51