Should Gibraltar be classified as a member of the ‘five eyes’ alliance?
There is a widely circulated misconception that Gibraltar is a part of the United Kingdom (UK). This misconception is reflected in the apparent classification of Gibraltarian VPN service providers as UK service providers. Such a classification misleads the users of Gibraltarian VPN services (such as IVPN) by giving them the false impression that Gibraltarian VPN services are governed by the UK laws and hence are subject to the signals intelligence sharing of the five eyes or ‘fourteen eyes’ alliances.
The purpose of this article is to demonstrate that Gibraltar is not a part of the United Kingdom (UK) and, therefore, Gibraltarian VPN service providers are not subject to the intelligence sharing alliance of the ‘five eyes’. In Section 2, an examination of the relationship between Gibraltar and UK is provided. Section 3 contains arguments showing that Gibraltar is not a part of the UK. In Section 4, a conclusion is drawn.
What is the relationship between Gibraltar and UK?
The main relationship between Gibraltar and UK stems from the fact that the British monarch is the head of state of both Gibraltar and UK. However, such a relationship is not enough to make Gibraltar a part of UK. For example, no one argues that Andorra is a part of France although the President of France is the head of Andorra (together with the Spanish/Roman Catholic Bishop of Urgell).
Arguments showing that Gibraltar is not a part of the UK
Gibraltar is not a part of the UK due to the following reasons:
- Gibraltar has its own system of governance, including a parliament and a government. The members of these two institutions are elected by the Gibraltar electorate. The parliament has 17 members, whereas the government consists of 10 members. The official website of the Gibraltar parliament states that the “the Gibraltar Parliament is the heart of democracy in Gibraltar and the rock foundation of the sovereignty of ‘Gibraltarians’ in the widest sense”.
- Gibraltar is not governed by the UK laws, but by legislation which suits Gibraltar’s own particular requirements and not the UK requirements.
- The Gibraltar Legislation Support Unit (LSU), together with ministers and government departmental officials, is responsible for drafting the Gibraltarian legislation. The Gibraltarian legislation is not drafted by the UK Office of the Parliamentary Counsel (an institution responsible for drafting all UK government Bills).
- Gibraltar has its own independent legal system. The Supreme Court of Gibraltar has unlimited jurisdiction to resolve any civil or criminal disputes. Other judicial institutions in Gibraltar include: the Court of Appeal of Gibraltar, Court of First Instance, and Magistrates’ Court.
- Gibraltar uses its own currency (the Gibraltar pound) which is controlled by Gibraltar’s government.
- Gibraltar is not officially represented in the UK parliament.
- Gibraltar is excluded from 4 areas of EU policy, namely, Customs Union, Common Commercial Policy, Common Agriculture Policy, Common Fisheries Policy. In comparison, the UK is obliged to comply with all those four areas. If Gibraltar was a part of the UK, the EU policies applying to UK would have applied to Gibraltar as well.
- Gibraltar is not obliged to comply with neither UK nor EU VAT rules. See Article 28 of the 1971 UK Assession Treaty.
- The Gibraltar Constitution Order 2006 clearly states that the Constitution of Gibraltar gives the people of Gibraltar a degree of self-government.
- The taxation in Gibraltar differs significantly from the taxation in UK. In comparison with UK, no corporate tax is levied on income which is not accrued in and derived from Gibraltar.
- The law enforcement in Gibraltar is in the hands of the Royal Gibraltar Police Force, not in the hands of the UK Police.
- The British Foreign and Commonwealth Office pointed out that Gibraltar is a separate territory enjoying the individual and collective rights accorded by the Charter of the United Nations.
- The British government clearly supported the right of self-determination of the people of Gibraltar.
In the light of the aforementioned observations, it can be concluded that Gibraltarian VPN service providers should not be classified as UK service providers and hence are not subject to the signals intelligence sharing of the ‘five eyes’ or ‘fourteen eyes’ alliances. To do the opposite would mean to disregard the important difference between the regulatory regimes applying to Gibraltar and UK. For example, Gibraltarian VPN service providers are not obliged to comply with the comprehensive UK laws regulating the information society (e.g. UK Digital Economy Act 2010).
Hence, the UK government is not entitled to conduct direct surveillance of Gibraltarian VPN networks. For example, the UK Regulation of Investigatory Powers Act 2000 (RIPA) allows certain UK public bodies to demand that a VPN service provider provides access to a customer’s communications in secret. RIPA does not apply to Gibraltar.
Even the data protection authorities of Gibraltar and UK are different. The data protection authority of Gibraltar is called Gibraltar Regulatory Authority (GRA). The GRA supervises the enforcement of the Data Protection Act 2004, a Gibraltarian law implementing the European data protection laws. The UK authority responsible for the enforcement of the UK Data Protection Act 1998 is called Information Commissioner’s Office (ICO).
In the future, we can expect that Gibraltar will preserve its self-governance and independent legal system. The autonomous status of Gibraltar makes it an attractive location for companies wishing to preserve the privacy and security of their customers.