The Gibraltar Government has told the House of Lords that there should be a formal constitutional mechanism in place whereby a treaty agreed by the UK can only be implemented here with Gibraltar’s consent.
This was part of the evidence submitted by the Government to the House of Lords Select Committee on the Constitution in the context of a report on parliamentary scrutiny of treaties.
Additionally, the Government said it would welcome an opportunity to engage with the British Government on the possible grant of a general entrustment as a means of addressing some of the regional challenges that Gibraltar faces.
The Gibraltar Government was providing evidence to the committee on its perspective on Gibraltar’s involvement in treaty-making processes, on the degree of consultation and involvement that exists, and the expectations it has for future engagement on treaties.
The Government highlighted two issues of concern including the constitutional basis for any consultation process; and the use of entrustments as a possible means of enhancing Gibraltar’s capacity for external action on regional issues.
With regards to the former the Government said the degree of consultation that currently exists is welcome.
“Meaningful consultation ensures that Gibraltarians – indirectly through their elected representatives – can have some influence over the application and implementation of treaties in the domestic legal order,” it said.
“The consultation process thus confers a measure of democratic legitimacy on the treaty-making process insofar as it relates to Gibraltar.”
In the spirit of such developments, the Government said it would like to see the consultation process placed on a firmer constitutional footing.
Highlighting constitutional requirements in the Cayman Islands, the Government said Gibraltar’s 2006 Constitution contains no such provision, adding that it “sees no reason why it should not”.
“Gibraltarians are no less affected than Cayman Islanders by the effects of international agreements in their respective domestic legal orders,” it said.
“There should be a formal constitutional mechanism that recognises that, other than in exceptional circumstances, the provisions of a treaty agreed by the UK can only enter Gibraltar’s domestic legal order with the consent of the Gibraltar Government.”
Gibraltar lacks the treaty-making capacity of a state, the Government said, but insisted that this does not mean that Gibraltar is not an international actor.
Gibraltar Government Ministers are constitutionally competent in many spheres of activity that depend on international cooperation and are governed by international legal rules: from transport, to telecommunications, to finance, to data protection, to the protection of the environment.
“When matters which are the responsibility of Gibraltar Government Ministers arise ‘in the context of the European Union’, they remain the responsibility of Gibraltar Government Ministers notwithstanding the UK’s responsibility for Gibraltar’s compliance with EU law,” it said.
Additionally, after Gibraltar leaves the EU, many matters arising ‘in the context of the European Union’ – for example, matters arising in the context of the future relationship between Gibraltar and the EU – will continue to be the responsibility of Gibraltar Government Ministers.
The Gibraltar Government said it has an interest in preserving and developing its capacity for external action in a regional context, where necessary by engaging with non-EU bodies and non-EU treaty regimes.
One way to achieve this would be for the UK to grant Gibraltar a general entrustment covering aspects of external affairs in a regional context, regardless of whether such matters arise ‘in the context of the European Union’.
This, the Government said, could be highly effective in an area like environmental protection, where regional cross-border cooperation is indispensable, and where regulatory gaps resulting from Brexit might be plugged by Gibraltar’s participation in non-EU regional regulatory frameworks.
Additionally, the Government flagged how the entrustment mechanism has been used successfully in relation to Gibraltar in recent years. Gibraltar was granted a general entrustment in 2003 to enter into Tax Information Exchange Agreements with EU and OECD countries.
“Like the Caribbean, the Mediterranean region is highly integrated and many spheres of activity depend on intense cross-border cooperation and shared rules,” it said.
“Gibraltar’s regional interests are as pressing and as deserving of promotion as the regional interests of other Overseas Territories,” the Government told the Committee.
“Gibraltar is not inherently less capable than other British Overseas Territories when it comes to discharging its international obligations in a regional context,” the Government said, adding that the Rock has “a stellar record of compliance” with its EU obligations.
“While Gibraltar’s capacity for external action in a regional context may be constrained in important respects by Spain – for example, Spain seeks where possible to block Gibraltar’s participation in regional bodies – , this is not a principled basis for treating Gibraltar differently to other British Overseas Territories when it comes to the capacity for autonomous external action.”
The Government said it would therefore welcome an opportunity to engage with the British Government on the possible grant of a general entrustment.
This, it said, would resemble those entrustments granted to other British Overseas Territories, and would address some of the regional challenges that Gibraltar faces.