Brexit and the law of unintended consequences

By Charles Gomez

It is now becoming impossible to ignore the paradigm that each attempt by the Spanish foreign ministry to ratchet up its campaign to annex Gibraltar without the consent of the Gibraltarians seems to back-fire.

In writing this opinion piece I do not mean to gloat. I genuinely and deeply worry that we in Gibraltar have become too complacent - smugness is the last thing that we need (in any event I leave that to the politicians). No, here I attempt to trace how, over the last 50 years, Gibraltar’s political progress has owed much if not everything to the baleful policies of the Palacio de Santa Cruz.

To keep things topical I will work backwards in time. The last few days of March 2017. Prime Minister Theresa May’s Article 50 Notice is published on the 29th. Gibraltar is not mentioned. Some in London now say that Spanish diplomats were able to convince their counterparts in the Foreign & Commonwealth Office not to include mention of Gibraltar in the Art. 50 Notice in order to give Spain an “early victory” (sic) in the hope of getting Madrid’s support later in the Brexit negotiations.

On the day the editor of the Gibraltar Chronicle puts a brave face to the dispiriting omission: “The content of the Article 50 letter, at least in as far as it related to Gibraltar, had been the subject of “strategic and tactical” discussion between the UK and Gibraltar governments, Chief Minister Fabian Picardo said yesterday. Although it does not mention Gibraltar by name, it contains a discreet reference to the Rock and other Overseas Territories” (Chronicle Thursday 30th March).

That day the Chief Minister was in London promoting Gibraltar’s position with his usual indefatigability but the tide seemed to be going against Gibraltar, with a real risk that notwithstanding the polite words of his hosts, Gibraltar was set to become a foot-note in the Great Game of European disintegration.

Enter the Spanish Foreign Ministry.

With extraordinary ingenuity, they are able to convince the President of the European Council Donald Tusk to include the following paragraph 22 in his draft response to Theresa May “After the United Kingdom leaves the Union, no agreement between the EU and the United Kingdom may apply to the territory of Gibraltar without the agreement between the Kingdom of Spain and the United Kingdom”; thus in one fell swoop unwittingly placing Gibraltar in the blazing spot-light on the very centre stage of the Article 50 issue. If on Thursday the Chief Minister was wandering around the outlying corridors of power, by Sunday the 2nd April he was in direct contact with the Prime Minister and her most senior colleagues. Save for the “Guardian” and a few other voices, the general consensus in London is now that Madrid’s blind siding of Mr. Tusk should not be allowed to prosper. A pro-Gibraltarian fire storm engulfed London, possibly fanned by the realisation that the F&CO was duped into convincing the Premier not to refer to Gibraltar in the Art. 50 Notice. Maybe Gibraltar owes a vote of thanks to the officials in Madrid who engineered paragraph 22.

At the end of this article I will comment on the possibilities for Gibraltar arising from this event. First however, rewind to 2002. More details have recently come to light about the secret discussions that year between the foreign ministries in London and Madrid when a proposal for joint sovereignty was made by the incumbents, Jack Straw and Josep Piqué. In his recent “Guardian” article, Straw’s Minister for Europe, Peter Hain says that everything had been agreed when suddenly the Spanish Prime Minister, José María Aznar pulled the rug (maybe he thought that British military control – which was one of the red lines of the Joint Sovereignty agreement- would damage Spain’s prestige). Equally interesting is the view expressed recently by Gibraltarian international law academic Dr. Jamie Trinidad that the joint sovereignty offer was a sweetener to get Aznar to commit to the invasion of Iraq which, in fact took place a few months later in early 2003.

Those recent revelations aside, the Joint Sovereignty almost done deal, coalesced UK support for Gibraltar, catapulted the then Chief Minister, Peter Caruana, since knighted, to a position of equivalence with UK and Spanish ministers and led to the legal restatement in the form of the Gibraltar Constitution Order of Her Majesty in Council 2006 that: “Her Majesty’s Government will never enter into arrangements under which the people of Gibraltar would pass under the sovereignty of another state against their freely and democratically expressed wishes.” Not only that but the 98.97% rejection of the notion of joint sovereignty in the November 2002 referendum nearly matched the 1967 referendum rejection of the military dictator Franco’s claim (99.64%), it laid the foundation for current British policy of involving Gibraltar in all discussions. All in all a tremendous back-lash which must have surely have caught Piqué’s ministry completely by surprise.

I say restatement because after the particularly aggressive Spanish campaign of the 1960s, the then Chief Minister, the late major Robert Peliza, also knighted, was able to ensure that that commitment was included in the 1969 Gibraltar Constitution Order of Her Majesty in Council. That Constitution provided a degree of autonomy for Gibraltar which has since developed into what many will argue is equivalent to that of a City State. It is difficult to believe that the transition from a garrison under the command of a senior military officer working with a Legislative Council in 1968 to the parliamentary democracy post 30th May 1969 could have happened so quickly, particularly with what was then a relatively submissive Gibraltarian political establishment, were it not for the reaction to Spanish policies. A stunning application of the law of unintended consequences.

The troubles in the 1960s which led to the closure of the frontier from 1969-1982 went further than politics. The natural affinity of Gibraltarians towards Spain, expressed in terms of language and culture decayed over the years and more so with each confrontation. The possibility of a rapprochement post the 2009 Cordoba Agreement when Miguel Angel Moratinos was in charge of Spanish diplomacy was soon shattered. What greater clumsiness can one dream up than the closure in 2015 of the popular Instituto Cervantes in Gibraltar? To use the expression coined by Cervantes’ contemporary William Shakespeare (Hamlet Act 3; scene 4), by closing the Instituto, Spanish diplomacy may have been “hoist with (its) own petard”. How can Spanish influence be promoted by withdrawing its international cultural and educational institution? Reminiscences of post – colonial Northern Morocco where the astute use of the Lycées Francais by Paris conclusively upstaged long-established Spanish influence.

The intense campaign of media denigration of the Gibraltarians apparently on orders from the Spanish government and which raged between the 3rd August 2013 and mid 2015 will no doubt one day be the focus of detailed analysis but for the purpose of this piece suffice to say that it alienated Gibraltarians and many in the UK from Spain even more.

Will Madrid take from this the lesson that when it comes to Gibraltar, Gibraltarian consent is a sine que non?

Certainly the events of the week end which included the 1st April have strengthened Gibraltar’s position in London (and possibly the US) in the context of the UK’s withdrawal from the EU; again the exact opposite of what the Spanish diplomats must have intended. To my mind, it is only a matter of time before others in Europe conclude that Madrid over played its hand at a time when the “European project” is in question, not just in perfidious Albion but also France and elsewhere and a sensitive approach was required. Madrid will be remembered when the hunt for scapegoats begins.

To conclude, will a hard Brexit compounded by a hard line from Madrid lead to Gibraltar’s integration with Britain? I doubt it because for that to happen No.6 Convent Place would first have to disclose all economic data to London and that is not going to happen any time soon. The latest Spanish faux pas should however allow Gibraltar greater opportunities to reposition itself in these uncertain times. Who knows, perhaps the new Spanish Foreign Minister, Alfonso Dastis, an Andalucian from Jerez de la Frontera, a mere 100 kilometres from Gibraltar, may decide that it is now time to re-think his country’s policy towards Gibraltar?

Charles Gomez is a barrister.