CO885-(11-13) — Page 407

6636.

PUBLIC RECORD OFFICE

CO. :

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

:

MY LORD,

No. 169.

(GIBRALTAR.)

LAW OFFICERS to FOREIGN OFFICE.

Temple, 14th May 1978.

We were honoured with the commands of the Earl of Derby signified in Sir Julian Pauncefote's letter of the 27th March last, stating that he was directed to transmit to us a letter and enclosures from the Colonial Office relating to the proposed issue of an Order in Council for regulating the trade of Gibraltar and checking the smuggling trade carried on between that port and the Spanish coast, and also the draft of the answer which, if we should concur therein, it was proposed to return to the Colonial Office.

I

That Sir Julian Pauncefote was to request that we would take the papers into our consideration, and inform his Lordship whether we concurred in the terms of the proposed

answer.

That we should observe from the concluding paragraph of the letter from the Colonial Office that the object of the Order was to exercise police jurisdiction over waters which, though claimed as British territorial waters, had hitherto been exempted from police control.

That the power intended to be given to the Governor to define the limits of the port was probably suggested by the provisions of section 11 of the Customs Consolidation Act of 1876 (39 & 40 Vict. c. 36.), whereby the Lords of the Treasury may by warrant enlarge the limits of ports in the United Kingdom, but that it might perhaps be con- sidered that that power was vested in their Lordships for Customs purposes only; and that Lord Derby wished to be informed whether it would, in our opinion, be desirable to defer the issue of the Order in Council until after the passing of the Territorial Waters Jurisdiction Bill then before Parliament.

In obedience to the commands of the Earl of Derby we have now the honour to

That-

Report

In our opinion there are great objections to giving the Governor of Gibraltar power to declare what waters round the Rock of Gibraltar shall he deemed to be within the limits of the port.

And we think the modification proposed in the draft answer to the letter of the Colonial Office, to the effect that a clause should be inserted in the Order in Council requiring the sanction of Her Majesty's Secretary of State for the Colonies to any Proclamation extending the limits of the Port of Gibraltar, is also open to objection.

Nor do we think the objection to either or both of these measures would be removed by an Act of the British Legislature.

The difficulty (apart from the meaning of the Treaty of Utrecht) in fixing the limits of British jurisdiction in the Bay of Gibraltar arises from the fact that the bay is less than six miles across. A three-mile jurisdiction from the Rock could not, therefore, be insisted upon in the greater part of the bay.

Any action which might be taken by the Governor, the Secretary of State, or Par- liament in extending the limits of the port at all, and specially to bring those limits within the three miles of any Spanish grounds, would therefore be at least a doubtful exercise of authority, and would certainly be offensive to the Spanish Government.

We suggest for consideration, and with reference to the difficulty which is referred to in the draft answer as existing between the Spanish and English Governments, that in the bay a defined and fixed line, dividing the English and the Spanish waters in the bay, should be settled by the two Governments.

Outside the bay, and beyond three miles from the Spanish shore, no objection can be taken by Spain to British jurisdiction, except on the Mediterranean side of the rock within three miles of the Spanish lines.

▲ 19916.-164. 95.-19/84.

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