GGR supports Union

Reacting to recent exchanges between TGWU Branch Officer Charles Sisarello and Minister Bernard Linares, Equality Rights group GGR has supported the Union in what it says is “an effort to bring the Union back to its members and which all those workers who have in the past years lost hope and faith in the Union should now support by returning and helping to build the Union again in the interests of ordinary working people!”

“Mr Linares and the Government he represents needs to understand Governments in democracies are not allowed to own Unions! Our society is supposed to work on the basis of separation of powers. That means Mr Sisarello can and should make whatever arrangements he sees fit for the youth and the rest of the membership of the Union if that is their wish without being in any way beholden to Government. Indeed, Ministers might learn a thing or two from Mr Sisarello’s attitude of only commenting on policy. Unless for Government, ofcourse, this would carry with it the inconvenience of having to address the facts – in particular, that Trainees in the Government Training Scheme have not had an increase in their allowance or grant since 1990, which means that for 16 years inflation has been reducing the value of their money.”

“The Union is there to defend the interests of its workers and as an Equality Rights organisation GGR will support T&G efforts whenever and wherever in this aim. Equally, Mr Sisarello and the Union can expect criticism whenever the Union fails to carry out this mission. In this respect, perhaps Mr Sisarello can explain why it is that the Gibraltar branch has so far done nothing to obviate its promotion of sexual minority workers’ rights in accordance with Rule 2 (2) (d) of the Union Rule Book. Gibraltar T&G continues to remain silent on its sexual minority members when it is willing to make other non-discrimination positions rightfully clear and public. It is wholly unacceptable that the Union should thus contribute to marginalisation of a sector of its workers by failing to operate open and public solidarity for all its members without distinction. Silence contributes to inequality and this is wholly unacceptable coming from the Gibraltar Branch!”

Full text of our report to the EU

RIGHTS IN GIBRALTAR

Introduction

Gibraltar is a dependent territory of the United Kingdom. It forms part of Her Majesty the Queen’s Dominions, but not part of the United Kingdom. The United Kingdom parliament has the ultimate authority to legislate for Gibraltar, but in practice exercises it rarely. Executive authority in Gibraltar is vested in the Governor, who is the Queen’s representative. Pursuant to a dispatch of 23 May 1969, certain “defined domestic matters” are allocated to the locally elected Chief Minister and his Ministers; other matters (external affairs, defence and internal security) are not “defined” and the Governor thus retains responsibility for them. The Chief Minister and the Government of Gibraltar are responsible to the Gibraltar electorate via general elections to the House of Assembly.

The House of Assembly is the domestic legislature in Gibraltar. It has the right to make laws for Gibraltar on “defined domestic matters”, subject to, inter alia, a power in the Governor to refuse to assent to legislation. The Treaty Establishing the European Community (“the EC Treaty”) applies to Gibraltar by virtue of its Article 227(4), which provides that it applies to the European territories for whose external relations a member State is responsible. The United Kingdom acceded to the precursor to the EC Treaty, the Treaty Establishing the European Economic Community of 25 March 1957 (“the EEC Treaty”), by a Treaty of Accession of 22 January 1972.
Gibraltar is excluded from certain parts of the EC Treaty by virtue of the Treaty of Accession. In particular, Gibraltar does not form part of the customs territory of the Community, with the result that the provisions on free movement of goods do not apply; it is treated as a third country for the purposes of the common commercial policy; it is excluded from the common market in agriculture and trade in agricultural products and from the Community rules on value-added tax and other turnover taxes, and it makes no contribution to the Community budget. European Community (“EC”) legislation concerning, inter alia, such matters as free movement of persons, services and capital, health, the environment and consumer protection applies in Gibraltar.1

The sovereignty status of Gibraltar has dominated the domestic political agenda for many decades. The predominant preoccupation of survival as a people with an identity and a political future has, naturally, commanded domestic centre stage during this time. Nothing stays still, however, and meantime social changes both on the Rock and in the rest of Europe have meant that expectations and demands have also arisen within our population. As Chairman of Equality Rights group GGR, I bear the responsibility of heading a human and civil rights group which is keen to listen to and reflect these increasing demands for change and to work, hand in hand with the European Union, in advancing the Social Agenda. This Report responds to a request by EU Justice Commissioner Franco Frattini at our meeting on 25th January 2006 to review the social rights situation in Gibraltar, and we have outlined four main areas of concern herein:

• A: Disability rights
• B: Sexual minorities
• C: British EU citizens rights
• D: EU social funding and structural inequality: flying before we can walk

I would like to thank members of my Executive Committee, the Disability Society and the Disability Movement for their cooperation and contribution to the writing of this Report and Graham Watson, MEP for his invaluable assistance in arrangements made for my recent meetings at the European Commission and Parliament - and for helping to make the distance between Gibraltar and Brussels that much shorter! My gratitude also to MEPs Michael Cashman, Glyn Ford, and Neil Parish for their kind support and invaluable assistance.

Felix Alvarez
(Chairman)

1 The above summary is provided in the judgment of Matthews v United Kingdom 24833/99 18 February 1999

A: Disability

Gibraltar has no specific legal framework setting out a definition of disability other than for the administration of contributory social security schemes. There is no recognition, therefore, of the rights of the disabled in any consistent or obvious sense. This leaves many questions open to discretionary interpretation and practice rather than subject to statutory provision. In reading through the below comments, it will be evident that guidelines such as set out in the UN’s Standard Rules on the Equalization of Opportunities for Persons with Disabilities in 1993 or indeed by the European Commission itself in COM (2003) 650 of 30.10.2003 and entitled “Equal Opportunities for people with disabilities: a European Action Plan” whilst, non-binding in nature, are far ahead of the current Gibraltar reality. It is in the direction of both those guidelines that Gibraltar’s disabled need to travel.

The situation:

1. It is a matter of practice which has arisen over time (but not of statute) in Gibraltar that congenital disability is recognised for the purpose of considering non-contributory allowances from the social security scheme and to assess entitlement to any other specialised needs of the affected individual.

2. Disability which is a result of employment is covered by the obligatory social insurance scheme and Gibraltar has developed statutory means of defining and administering this scheme. This leaves in question, however, the situation regarding disability which might have arisen after birth but outside of the employment sphere.

3. The absence of statutory rights leads to the practice of discretionary social security awards.
Individuals have no access to open and published public information regarding either the levels of allowances payable nor, indeed, of the basis for their calculation. This also leads to a situation whereby affected persons are unable to question or challenge a decision.

4. Social Security, Social Assistance and Social Advantage: Gibraltar as a small EU territory may perceive particular problems with the provision of statutory rights in the field of disability: namely the impact of Regulations 1408/71 and 1612/68 (with particular reference to Article 7 (2) of same regarding social advantage). The implication under EC law of contributory and non-contributory schemes of financial relief, European Court of Justice jurisprudence (Frilli v Belgium (case 1/72) is the first of a series in which a “double function” test has been applied to distinguish “social security” from “social assistance”) as well as the impact of ECJ case-law regarding non-nationality discrimination and consequent rights to “social advantage” implicit in both the EC Treaty and secondary legislation lead to a confusing situation for all concerned and may, to some degree, explain the absence of statutory Gibraltar means to providing the necessary framework guiding the rights of the disabled in Gibraltar. Clearly, this situation is not a happy one and needs to be addressed within the context of Gibraltar’s small territory status and the framework of freedom of movement and the internal market implicit in primary and secondary EC law.

5. Practical everyday realities of the disabled in Gibraltar:

• Child Development Centre – Children under pre-school age are segregated as they are not offered places in Government-run mainstream nurseries, thus creating a situation of isolation from the earliest years of a disabled person’s life.
• St Martin’s School – A school for those children deemed by a Government Assessment Panel to be unable to attend mainstream schooling. The Panel does not allow parental involvement and, once a decision has been reached, there is no right of appeal.
• St Bernadette’s Occupational Therapy Centre: a centre run by the Social Services Department. The Centre is run along school hours, opening at 9am and closing at 4pm, being also closed during school holidays. This means that trainees have no service available during Easter, Christmas and for nearly two months in the Summer. Trainees with profound disabilities are provided a small service during Summer from 9am to 12pm. The Centre will not provide a service to those disabled persons it feels are “disruptive”. There is no other form of help offered within the community to the family of that person. Additionally, the Centre provides for those persons who, having attended mainstream school, are unable to find suitable training schemes or employment. There has been no history of occupational therapy provision within this Centre.
• Dr Giraldi Home: This is a residential facility consisting of two flats with several bedrooms in each flat. At the time of writing the flats are full and new residents are having to live in a respite unit provided to cater for the needs of families of the disabled needing a rest from the continuous care they provide.
• Respite Service: A total of 800 hours of respite service per month are budgeted by the Gibraltar Government in order to provide a service which allows the occasional break from constant care of the disabled which being a carer means. This service was not provided from December 2004 to April 2005 and then again from June 2005 to January 2006 following administrative problems related to the fact that the majority of staff work on a supply basis only.
• Objective official inspection of Government services for the disabled: The Disability Society in Gibraltar has called for independent inspectors from the UK to do regular annual visits as there have never been any inspection of these services by any official body in order to assess the conditions and practices employed within them. Government has not acceded to this request to date.
• Residential Care: The general rule is that as long as one parent still survives, residential care is not provided, although discretion is exercised in exceptional circumstances. With increasing life expectancy of both the disabled and the able-bodied, this places a sometimes unbearable strain on elderly parents and adds to the suffering of the disabled.
• Limited community-based support: The Government of Gibraltar provides the Disability Society with an annual grant to provide a Home Help scheme. It is the only help for the disabled which is provided to enable the disabled to remain within the wider community.
• Provision of equipment: Social Services Department will pay for the majority of needs in this area so long as the equipment is recommended by therapists. If a person becomes disabled or has a disabled child AND lives in Government accommodation, the expense of adaptations to the premises will be met by Government. However, if the person or family resides in private accommodation, the expense of adaptations will have to be met by the individual.
• Educational grants: whilst statistical information is unavailable to us, the Disability Society knows only of one case of a disabled person being granted an educational grant to attend University. Whilst, clearly, this situation may reflect the fact that hardly any disabled person applies for such grants, it is equally clear that both the overall provision of educational opportunities for the disabled as well as the lack of statutory encouragement regarding their quality of life expectations may lead to the low take-up rate which the situation reflects.
• Carer Support: There is no scheme giving either recognition or financial assistance to carers of the disabled who, very often, give up employment and pension rights later in life as a direct result of commitment to their loved one.

B: Sexual minorities

In the United Kingdom, homosexuality was decriminalised via the Sexual Offences Act 1967. Gibraltar decriminalised consenting sexual relations between men over the age of 18 through a 1993 amendment to the Criminal Offences Ordinance. It was not until the launch of GGR (originally “Gib Gay Rights”) in September 2000 that issues affecting same-sex couples began to be discussed publicly with a lively and open campaign which, over the past 6 years or so, has not ceased to air the issues involved: full participatory and open citizenship of sexual minorities in Gibraltar. GGR has been an exponent of rights based on equality of opportunity whether based on a contributory basis via taxation, social insurance or non-contributory schemes (to include but not be limited to pension rights for same-sex couples, equal access to Government housing, and official recognition and status for same-sex partnerships with all the rights which devolve therein). The Government of Gibraltar has expressed no interest in pursuing meaningful dialogue on these matters and has made it obvious and clear that it will not further progress on such issues proactively unless and until obliged by legal obligations in this field. Amongst such measures we take account of the Equal Opportunities Ordinance 2003 which, amongst other Directives, implemented the Framework Employment Directive. To date the situation stands as follows:

1. Equal Opportunities Commission: Reference Council Directive 2000/43/EC of 29 June 2000 – the “Race Directive”.

Further to Chapter III, Article 13 of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (Official Journal L 180 , 19/07/2000 P. 0022 – 0026) and requiring the unequivocal designation of “a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin” ; and s.54 (1) (a) of Gibraltar’s Equal Opportunities Ordinance 2004 in which it states that the Government of Gibraltar may make Regulations for the “establishment of an equal opportunities commission…if any, in Gibraltar” In view of the clear requirement of the above Directive for Member States to “designate a body or bodies for the promotion of equal treatment of all persons without discrimination”, and the failure on the part of the Gibraltar Government to date to establish such a body or bodies in addition to the uncertain nature of the Government of Gibraltar’s intentions in this respect given the wording of s.54 (1) (a) of the Gibraltar Ordinance which speaks in terms which leave clear the possibility that (in the absence of no positive mention to the contrary within the Gibraltar statute) that no such body whether termed an equal opportunities commission or otherwise may in fact be established by Gibraltar contrary to the requirements of the Directive , then it is our view that the Commission has a duty to pursue this matter directly with the UK Government in order to require that said statutory body be given effect without further delay in accordance with EC law.

When pressed on the question of Gibraltar’s transposition of EC Directives under the title of “Non implementation of EU Directives”, paragraph 61 of the UK Parliament’s Select Committee on Foreign Affairs Fourth Report, the Committee comments that “the Gibraltarian Government told us that the "reality of the matter is that Gibraltar's EU directives transposition record is now very good." It is a matter of judgment as to whether the delay in the establishment of the statutory body designated by Directive 2000/43/EC falls within this view or not.

2. Age of Consent legislation in Gibraltar

Further to the case of L & V v Austria (Applications nos. 39392/98 and 39829/98) 9 January 2003, ECHR, Strasbourg and Parliamentary question/answer E-3319/05EN given by Commissioner Frattini on behalf of the Commission (7.11.2005). Given the acknowledged limitations in the current position of the Commission regarding the elimination of inequalities reference the homosexual age of consent, it is our submission that the Commissioner pursue these inequalities within Member States where they exist utilising the framework relationship between the European Union and its recognition of the fundamental nature of the values of the European Convention of Human Rights as expressed in European Court of Justice jurisprudence.

In illustration of this, the Preamble to the Single European Act 1986 makes explicit the concern for protection of human rights within the Community. Article 6 of the Treaty on European Union 1997 (Treaty of Amsterdam) stipulates that:

“The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.”

In 1969 the European Court of Justice turned its attention to the status of fundamental rights in Stauder v City of Ulm (1969) finding that it had a duty to protect the rights of individuals as provided for by the constitution of the Member State, and that such provisions formed part of the general principles of Community law. This relationship was further clarified in Internationale Handelsgesellschaft mbH v EVST (1970) where Community law is held to be supreme and without further reference over even national Constitutional provisions. The ECJ made a clear pronouncement that respect for fundamental rights “forms an integral part of the general principles of law protected by the Court of Justice.

The protection of such rights, whilst inspired by the constitutional traditions common to the Member States, must be ensured within the framework of the structures and objectives of the Community.”

This thinking was extended in Nold v Commission (1974) wherein the ECJ ruled that constitutional rights protected under Member States’ constitutions must be respected, whilst also emphasising that “international treaties for the protection of human rights [can] supply guidelines which should be followed within the framework of Community law.” Not only has the ECJ acknowledged the European Convention on Human Rights as an aid to the interpretation of Community law, but also International Labour Organisation Treaties, the Council of Europe’s European Social Charter, and the International Covenants on Civil, Political, Economic, Social and Cultural Rights. Academics disagree as to whether this signifies that the ECHR is binding on the law of the EC. Whilst HG Schermers has argued that the EC is bound by the ECHR2, A. Dremeczewski has argued that the Convention does not bind the EC.3 Notwithstanding the precise nature of the relationship between the Community and the ECHR, it has become increasingly clear that the ECJ is committed to the protection of rights. What remains, as yet, unclear is the breadth of protection that the ECJ may consider to be fundamental. Nonetheless, whilst in Opinion No. 2/94 [1996] ECR I-1759, the Court made clear its view that direct accession to the ECHR on the part of the Community could only be accomplished through amendment of the EC Treaty, the reality is that through its proposal for a European Constitution, the member States of the Union clearly considered direct incorporation of the ECHR into Community law a necessity. This provides explicit evidence of the strength of feeling on this issue within the Union. Chapter I, Sections 1-17 of the Gibraltar Constitution 1969 lay out provisions for the protection of “Fundamental Rights and Freedoms of the Individual” but reflecting as it does, the state of play of the ECHR in 1969, it makes no express provision for recognition of 2 See Schermers HG, Judicial Protection in the European Community, 4th edn. 1987, Dordrecht: Kluwer and Schermers, HG, The European Community bound by fundamental human rights (1990) 27 CML Rev 249 3 See Dremczewski, A., “The domestic application of the European Human Rights Convention as European Community law’ (1981) 30 ICLQ 118 protection against discrimination on the basis of sexual orientation. It is currently proposed by the Gibraltar House of Assembly that the Gibraltar Constitution 1969 be reformed and revised and a public consultation process was undertaken in February 2001 at which GGR Chairman Felix Alvarez made the case for protection against discrimination on the basis of sexual orientation in any new Gibraltar Constitution. The Report of the Select Committee on Constitutional Reform which was published on 23rd January 2002 did not include any such provision. It is clear that the Government of Gibraltar refuses to provide the level of human rights protection to its homosexual citizens which Article 13, EC makes obligatory upon member States and action upon which, we submit, is incumbent upon the institutions of the EU. This organisation has made its views known to the British Government (via the Secretary of State for the Foreign & Commonwealth Office) regarding the exclusion of homosexual citizens from the protections of any new negotiated Gibraltar Constitution. Negotiations have been on-going between members of the British Government and Gibraltar representatives and, according to press reports, progress is imminently expected to be announced.

C: British EU citizens’ rights

Attached under Appendix I are copies of an application to be included on the Housing List in Gibraltar made by British established resident X (specific reference of name reserved herein). Additionally, you will find the response to this application by the Housing Department which clearly stipulates that for X to be included on said List, X must either obtain (1) Gibraltarian status or (2) permanent residency status. GIBRALTARIAN STATUS Section 9 (f) of the Gibraltarian Status Ordinance 1962* requires, amongst other possible conditions, that a person applying to be registered within the terms of the Ordinance, must have been “resident in Gibraltar for periods amounting to not less than twenty five years in the aggregate”. X does not qualify under these terms. X therefore applied for permanent residence status.

PERMANENT RESIDENCE STATUS

As per Section 4 (b) of the Housing Allocation Scheme (Revised) 1994 (see Appendix II) a means for qualifying to be placed on the housing list is to have been awarded “permanent residence”. As is clearly confirmed in the Deputy Governor’s letter dated 6 February 2006 Section 3, a later addition to the Immigration Control Ordinance ∗∗ disapplies provisions for permanent residence status. In effect, the option to qualify for permanent residence status is no longer available. The eligibility criteria under the Housing Allocation Scheme (cited) are therefore impossible to meet for EEA nationals.

Under Regulation 1612/68, Art. 9 (2) EC law provides that member State citizens established or otherwise resident in a host member State shall have the same right to place their name on housing lists of that host State and shall, additionally, have the same right to enjoy any resulting benefits and priorities.

* Full text may be downloaded from http://www.gibraltarlaws.gov.gi/
**Full text may be downloaded from http://www.gibraltarlaws.gov.gi/ (enter “immigration” in the “keyword of title”section to find the item For the European Community, the fundamental requirements of freedom of movement and derivative rights are enshrined not only within provisions of the EC Treaty but within secondary legislation addressing the specific needs which emanate therefrom. X’s circumstances illustrate a deficient situation whereby a British EU citizen in Gibraltar is hindered institutionally from accessing provisions of EC law regarding entitlements to enter local Housing Lists.

D: EU social funding and structural inequality: flying before we can walk

The EU Social Agenda is central to the development of the idea of Europe; central indeed to the internal market and the cohesion which the European project represents. Just as central and continually reiterated officially is the desire to encourage all social agents throughout the Union to participate in the realisation of the goals of that Agenda. It follows, therefore, that the means employed to achieve those ends must, themselves, be such as to in no way contribute to the opposite effect: marginalisation, intolerance and discrimination.
As an NGO in a very small territory such as Gibraltar, we have come to the conclusion that the EU’s Social Funds are unintentionally structured in such a way as to make it practically impossible for organisations in a small territory such as Gibraltar to be able to have access to what is intended to be a means of support for civil society’s work in building the Social Agenda. It is, in our view, a necessity, therefore that the structures provided for social funding by the EU should accommodate the specific needs of organisations such as Equality Rights group GGR and others in Gibraltar whilst maintaining the large Nation State, trans-European network focus which is so relevant for the majority of EU territories but which becomes a factor of restriction and marginalisation for those of us in tiny EU territories and which, in one sense, could be seen as representing a form of “structural inequality.”

In specific terms, Equality Rights group GGR (an equality and human rights organisation) actively works to promote European values of tolerance, integration and social cohesion and in that task we look towards advancement within the Union. Given the political history of Gibraltar, there is much scepticism regarding the EU. Working for advancement in a tiny European community, however, means that GGR is faced with specific problems of funding access. In particular:

1. EU Social funding administrative requirements a priori make application if not impossible then, as a minimum, extremely difficult: programme requirements mean that demands for previous and demonstrable financial viability, annual and audited accounts, in addition to a possible requirement for a bank guarantee against funding contract (financial institutions are highly reluctant to provide such guarantees without cash or assets as a backing!) defeat the object of assisting organisations such as our own in promoting the objectives of the Social Agenda and only add to the already existing scepticism regarding a) the sincerity of the Union in regard to truly advancing integration and b) the sincerity of the Union regarding Gibraltar’s inclusion in the wider European framework.

2. Measures combating and preventing discrimination: 04 04 04

We make reference to this particular budget line as a prime example of how even “model” attempts to address issues of this nature, in themselves and unintentionally, preclude small territory NGOs such as GGR from participating. Without a doubt the terms of reference of this particular budget line fit closely the work that GGR and other Gibraltarian NGOs undertake.
Nonetheless, there are realities of small European communities such as Gibraltar which appear to be unacknowledged in the terms of even this “anti discrimination” budget line. The fact that the NGOs concerned proceed from a tiny community means that there is likewise a tiny possibility, consequently, of raising a sufficient subscription base to reach the most minimal of function levels. Invariably in situations where States have policies which are not friendly to social agenda objectives and thus allocate no or miminal resources to funding such NGOs, the limitations are multiplied. The basis of 04 04 04 is, substantially, to provide analysis and data.
Gibraltar’s NGOs have to cope with the day-to-day problems of dealing with immediate situations. It is here that funding is required to provide office facilities, to provide meeting rooms, to provide a place from which training and seminars may take place. Given this scenario of the reality, it is also clear that the core objective of fostering transnational networks of cooperation is not something that is feasible for NGOs of this type.


Such programmes cannot fly before they can even walk and it is this that funding requirements often ask of them! In effect, the feeling of scepticism regarding the EU’s treatment of Gibraltar’s citizens is compounded when discussion of this Union “Catch 22” situation is raised. We are working against this tide but are looking for resolution. We look to the EU for support in continuing our promotion of the Social Agenda and it is for this reason that we believe that the framework and structure of social funding programmes in respect of Gibraltar and any other small European territory need to be adapted or extended in order to address the specific conditions they present. Gibraltar as a Union constituency needs NGOs such as GGR to work in the promotion of European integration and encouraging tolerance and non-discrimination in line with basic EC Treaty and Social Fund objectives. A society that is poor in civil society participation starves oxygen from the democratic fibre and prevents the establishment from within of an independent citizenship able to reinforce in real terms the values represented by the European Union. To this end we ask that funding structures be reviewed.

Recommendations

1. Following the judgment in Matthews v The United Kingdom (24833/94 of 18 February 1999) and consequent upon Article 227 (4) EC, it is clear that for EU purposes the constituency of Gibraltar is a direct responsibility of the United Kingdom. This responsibility should, in our view, attach to the UK’s reporting and consulting obligations. Consequently, National Action Plans submitted by the United Kingdom for information and planning purposes at EU level should not fail to include information on the status of the subject matter as it relates to Gibraltar. To date, we have seen no UK National Action Plan which has transmitted the state of play regarding planning in respect of Gibraltar. It is our recommendation that the EU should require the United Kingdom to ensure inclusion of Gibraltar in all its reporting obligations for the purpose of advising and informing the institutions of the EU in order for the specific conditions and needs of Gibraltar EU citizens to be taken into account. Without such inclusion and in view of the Government of Gibraltar not being held directly responsible for so advising the EU and its institutions, there will continue to be an absence of advice to the EU on these matters. This is particularly of note on issues of international human and social rights standards as applicable to Gibraltar.

2. The rights of persons with reduced mobility and disabled when travelling by air and the recent adoption of COM (2005) 0047 – C6-0045/2005-2005/0007(COD) excluding via Amendment 74 these provisions for the disabled in Gibraltar. It is to be hoped that recent undertakings by Commissioner Frattini for the Commission to review the direct applicability of this Regulation to Gibraltar will be given top priority in consideration of this report and that failure to do so will not prove to be a further source of discrimination for Gibraltar’s disabled citizens.

3. Article 13 EC provides ample and substantial powers on the part of EC institutions for the combating of discrimination on the basis of sexual orientation, among others. Within the framework of the ECJ’s respect for the fundamental rights enshrined within the ECHR, the obvious importance attached to such rights by member States as evidenced within the framework of a proposed Constitution for Europe, and as a matter of compliance with the judgment represented by the case of L & V v Austria, decisive action should be taken to put an end to the inequalties represented by Gibraltar’s legislation in regard to the sexual age of consent.

4. In view of current negotiations between the UK Government and the Government of Gibraltar regarding the reform of the Gibraltar Constitution 1969 and the possibility of imminent agreements between the parties on this matter, the EU should exert whatever influence may be necessary to ensure that any new Gibraltar Constitution should once and for all address the necessary inclusion of sexual orientation as a protected non-discrimination category.

5. The status in Gibraltar vis-à-vis British and other established or resident EU citizens should be reviewed and assessed with regard to any implication for freedom of movement and derivative rights (such as inclusion on local housing lists). Such a review should take account of local procedures to ensure they do not impose unreasonable and unnecessary obstacles to the clear exercise of EU citizens’ rights.

6. The Social Agenda is fundamental to the prime objectives of the European Union. It is vital, therefore, that social funding to promote the Agenda be in place as a tool towards this end. That tool, however, must be a faithful reflection of the elements crucial to such an aim: if civil society is unsupported in its work to promote the Social Agenda the programme is, perhaps, failing at that point. Trans-European networks across EU States is a proper focus – yet non-accommodation of tiny territories such as Gibraltar means that those of us working in favour of the EU’s objectives are marginalized and are unable to access otherwise available assistance. This situation needs to be reassessed and flexible measures brought in to ensure that organisations such as Equality Rights group GGR can walk before they are asked to fly – EU assistance in core funding is vital!

Our EU Report goes public!

Equality Rights group GGR has today made public a report (below) developed upon the request of the European Commission and entitled “Rights in Gibraltar.”

Chairman Felix Alvarez stated that “The Report was submitted in February and sufficient time has now elapsed for us to consider our confidentiality duty fulfilled as it is only right that the Gibraltar public should have access to the document. In contrast, we understand that Government has now developed proposals for a Disability Ordinance. We challenge Mr Caruana to publish the draft proposal in order to stimulate public discussion and participation in an issue which, no doubt, this community feels strongly about. It is the kind of thing that Governments with a genuine belief in transparency do all the time and we urge Mr Caruana to demonstrate his credentials by establishing a similar tradition here in Gibraltar.”

“GGR's “Rights in Gibraltar” report deals with four issues – three of which are of general public interest: disability, British residents’ rights, and sexual minorities. Several recommendations contained in the Report will be of some interest – in particular, the recommendation that the UK Government should be required to include Gibraltar in all its reporting duties to the EU. This will avoid the current information vacuum which currently exists in Brussels regarding Gibraltar,” Mr Alvarez added.

“Whilst the UK periodically submits national reports on EU-related issues to the Commission, nowhere do Gibraltar issues figure in those documents. As I recently found when talking to EU Commissioners, this means that the EC is kept pretty much in the dark with respect to the way issues affect the Rock. This explains why I was requested to develop the Report which we are today making available.”

Mr Alvarez further comments that “There is little doubt in our minds that movement on the Disability Ordinance as well as progress which is currently being achieved on the sexual Age of Consent issue are direct results of this Report, though we very much doubt Government will want to acknowledge the fact. In the Study’s own words and on the latter issue, barely one month after the GGR report, the Commission ordered a specific legal Study “regarding the maintenance, in the legislation of Gibraltar, of discrimination on the basis of sexual orientation [and] Such a provision is in clear violation of the European Convention on Human Rights.” The Study is clearly acknowledged to be prompted by the Gibraltar situation on the matter. The document highlights the juridical situation at European level, whilst placing Gibraltar within this context and providing proof positive of the level of concern Europe feels over Mr Caruana’s continuing neglect of sexual minorities’ rights in Gibraltar.”

Government owes Gibraltar an explanation!

Felix Alvarez, Chairman of Equality Rights group GGR, has today expressed concern regarding information that Ocean Village Investments Ltd is said to be purchasing Marina Bay Complex Ltd, thus taking control over the two existing marinas in the area in order to create a super-complex.

“Whilst we clearly welcome moves for the economic development of Gibraltar, we have to question the processes which are currently at work on this and other developments on the Rock. We have to wonder where this is all leaving the ordinary Gibraltarian, as decisions appear to be be made with what appears to be little or no prior warning or information to the public. This is contrary to the rightful expectation that the public should be able to consider plans on the part of either Government or large private concerns on matters which touch on policies and actions which may affect the present and future well-being of this community,” Mr Alvarez stated. "We also wonder on what principle of equality it is that the most desirable building sites in Gibraltar are being swallowed up by expensive construction projects whilst sidelining ordinary Gibraltarians to the less desirable plots around the Rock!"

“Additionally, it is a duty of Government to ensure that we have properly and impartially-constituted development and planning bodies which provide opportunities for members of the public to not only obtain information on planned developments with sufficient notice so as to make their scrutiny effective, but also for citizens to present objections or suggestions within the remit of the process. As things stand today, we are not confident that Government is living up to these requirements, though we welcome their addressing these issues publicly if they feel our opinion requires rectification. Government owes Gibraltar an explanation for all of this and furthermore,” Mr Alvarez continues, “the fact that large private concerns should, in effect, be able to swallow up other concerns without the opportunity for public intervention, scrutiny or control so as to create what, for Gibraltar, verges on superownership raises important questions regarding what the future holds for Gibraltar both as a country and as a people,” Mr Alvarez ends.