‘Imperfect’ treaty will shield Gib from ‘very, very catastrophic’ hard Brexit, CM tells Parliament

Chief Minister Fabian Picardo told Parliament on Tuesday that the UK/EU treaty for Gibraltar was “safe, secure and beneficial”, ensuring Gibraltar avoided the “very, very catastrophic” impact of a hard Brexit.

The Chief Minister was speaking during a debate on a motion calling on the UK Government to enter into the treaty on Gibraltar’s behalf, a step that in effect will trigger the start of the UK’s ratification process.

In addressing Parliament, Mr Picardo said the agreement was “the fruit of necessity, not of choice”, adding that while Gibraltar had voted overwhelmingly to remain in the EU in 2016, Brexit had “put us on the back foot”.

The choice was not between the treaty and the current status quo, where border fluidity had been maintained thanks to Spain’s “forbearance” in the application of Schengen checks.

The alternative to the treaty was a hard border and avoiding that scenario was the agreement’s real prize, with Schengen access being “the cream”.

“However imperfect the treaty, it is safe, secure and beneficial,” Mr Picardo said.

“It makes no cessions on sovereignty.”

“And it is better than the alternative.”

“It is not a trap from which we will not be able to extricate ourselves in the future if it were to be twisted against us.”

“It is secure in representing no cession in any measure or regard in respect of our exclusive British sovereignty.”

“And it is beneficial in that the benefits it will bring both in the field of frontier fluidity and in the free movement of goods will secure our socio-economic development as have long wished.”

“It takes us back into the certainty of rights of personal fluidity and fluidity of goods that our economy needs.”

“The test we set out by which we would collectively judge the treaty are met.”

Mr Picardo urged the Opposition to support the motion, adding the moment was “too important for party politics”.

“This is about building our nation to withstand a shock that will be catastrophic if it is allowed to hit us,” he said.

“And those who are thinking about rejecting this imperfect treaty need to understand the perfect storm that they would be subjecting our people to if they were to prevail.”

CONCORDAT

Mr Picardo spent ample time analysing the importance of a parallel formal agreement between Gibraltar and the UK, known as a concordat, that will be laid in the UK and Gibraltar parliaments alongside the treaty.

The concordat safeguards Gibraltar’s role in participating fully in any changes or administrative arrangements arising from the treaty including managing disputes, respecting its constitutional responsibilities and relationship with the UK.

Crucially, it will include language enabling Gibraltar to call on the UK terminate the treaty in the event of EU or Spanish overreach in its application, or should Gibraltar decide it is not beneficial to its interests.

It will also protect Gibraltar should a future UK Government wish to terminate the treaty for ideological reasons even if Gibraltar wants it to continue.

The treaty text published last week includes a termination clause that can be triggered by either signatory – meaning the UK and the EU – and, in some circumstances, by Spain, protecting its interests as the EU member state directly affected by the arrangements.

The text itself does not include similar protections for Gibraltar because of the constitutional relationship with the UK, but those protections will be set out in the concordat.

“Let’s be reasonable here,” the Chief Minister said.

“This treaty is happening because of Spain and because of matters that touch and concern Spain, not least the post-Brexit plight of its 15,000 cross frontier workers, not all of which are Spanish, but all of whom are residents of Spain.”

“If this primacy of Spain over the other 26 member states were not in the treaty, then Spain would be in the same position as Hungary or Denmark.”

“Those two are a thousand miles away from our frontier and the operation of this treaty.”

“So it is understandable that Spain has sought to have its position protected in this way in the treaty.”

“We too must have protection and primacy on termination.”

“But we need to have it within the British side.”

Gibraltar, Mr Picardo said, must have provisions in the concordat “that give us similar rights to hold what we might call the trigger on termination on the British side”.

Gibraltar and the UK had hoped to have the text of the concordat ready for Tuesday’s debate but the timeline was derailed by the war in the Middle East, which has filled ministers’ “bandwidth” unexpectedly.

On Monday night though, Stephen Doughty, the UK Minister for Europe, wrote to the Chief Minister and made clear the UK’s commitment to providing the necessary guarantees.

In the letter, which Mr Picardo read to Parliament and shared with Opposition Leader Keith Azopardi, Mr Doughty said it was “politically inconceivable that in any normal circumstance, should a democratically elected Government in Gibraltar, or indeed the Gibraltarian people, determine that this agreement does not serve their interests, His Majesty's Government would not take action.”

“This agreement has been negotiated to ensure the long-term continued security and prosperity of Gibraltar and its people, who are British citizens,” Mr Doughty added in the letter.

“Our commitment to them remains absolute.”

“This agreement can never be a trap from which they cannot escape if it can no longer enjoy their support.”

LEGAL AND POLITICAL OPINIONS

The Chief Minister referred to three legal opinions obtained by the Gibraltar Government, all of which supported its view that the agreement made no concessions on sovereignty.

The opinions were prepared by eminent UK lawyer Lord Pannick, KC; former Chief Minister Sir Peter Caruana, KC, and Jamie Trinidad, KC, a Gibraltarian lawyer who has advised the Government on sovereignty matters.

The three opinions will be published by the Government, Mr Picardo told Parliament, as he cited extracts from each.

Mr Picardo said that throughout the negotiation, the treaty had been “meticulously stress tested” by the Attorney General, Government lawyers and the Foreign Office legal team to ensure no sovereignty red lines were crossed.

“Every aspect of what we discussed, considered and agreed was reviewed through a sovereignty filter to ensure that it was safe from that perspective,” he said.

This was then independently assessed by the three senior lawyers, who reached the same conclusion that sovereignty, in legal terms, was protected.

“All three opinions confirm that the treaty makes no concessions of legal sovereignty to Spain, or any other entity, over Gibraltar,” the Chief Minister told Parliament.

While the treaty gave Spain some practical roles in its application, these would be conducted in the context of its status as the neighbouring EU member state and on the EU’s behalf, and only because the UK and Gibraltar had exercised their sovereignty by agreeing to them and passing the necessary laws in the UK and Gibraltar parliaments.

The Chief Minister noted too that all three living former Chief Ministers – Sir Joe Bossano, Sir Peter Caruana and Adolfo Canepa – had all expressed support for the “imperfect” treaty, especially against the backdrop of the alternative ‘no deal’ scenario.

POLICE COOPERATION

During his opening submission, Mr Picardo addressed a number of concerns about the treaty that have arisen since the text was published last week, many of which he has spoken about already in recent days.

He explained, for example, that there would only be one entry point at the airport that would be open 24 hours a day and that there would be no need for immigration controls at the port because all cruise passengers would be pre-cleared before arriving in Gibraltar and there would be no ferry link to Morrocco. All other maritime arrivals would be taken to the airport joint facility.

In practice, that means there would be no need for Spanish patrols between airport and port facilities as allowed by the treaty, mainly because there would be no port facility at all.

While the treaty allowed for hot pursuit into Spain or Gibraltar, this reflected normal Schengen rules and would require prior notification.

In practice, given Gibraltar’s border arrangements meant traffic was channelled through the tunnel funnel and there would be a stepped-up police presence in the area, any chase starting in Spain and continuing into Gibraltar would likely end metres from the border.

The treaty allowed for joint police operations, as is the case today, but only Gibraltar officers would be able to exercise executive powers.

“There will not be Spanish boots on the ground,” Mr Picardo said.

“What there will be is a lot of cooperation. A lot of information sharing. A lot of what is taken for granted now between modern European states and which we have always said we would like to see.”

“That is to say: a normal relationship between us and our neighbours.”

SECURITY

Addressing public concerns about removing physical barriers at the frontier and the risk of watering down Gibraltar’s British identity, Mr Picardo said identity and security did not depend on the current fencing.

He said the removal of barriers would be combined with new security infrastructure, including motion-detecting lighting and a network of CCTV cameras covering the area around Four Corners, monitored from the tunnel monitoring building, with live facial recognition and automatic number plate recognition analysed in real time.

He said the system would be extended to other areas including Devil’s Tower Road, Casemates, Main Street and the wider town area.

“It's not the frontier that makes me feel British,” he said.

“It's not a chicken wire fence that protects my way of life and my cultural understanding of the world.”

“My Britishness, like the Britishness of all of us here, is in every fibre of my being, in every aspect of my soul.”

“And taking the whip hand away from those who have used the frontier to strangle us economically and socially, will not make me less British.”

“It will take a tool away from those who have wanted to use the frontier to persuade us not to be British.”

OTHER CONCERNS

On the transaction tax, Mr Picardo reminded Parliament that this would be levied on the value of imported goods, not on their sales value, insisting this would be “hugely beneficial” to local retailers who would gain access to the wider EU market, providing them with “a huge opportunity to prosper”.

He outlined a number of measures to support businesses during the transition period as the treaty was implemented.

Mr Picardo acknowledged too that the treaty set a limit of 90 days in 180 days in which a Gibraltar resident could be within the Schengen area,

But he said there would be no checks when crossing the land border, meaning “the clock on the 90 in 180 will never start to tick” in practice.

The treaty, he told Parliament, was not about freedom of movement but rather about fluidity, and the provisions were reciprocal, meaning the same limits would apply to EU nationals coming to Gibraltar.

On visas for non-EU nationals not resident in Gibraltar who require them, Mr Picardo said Spain would issue visas in cases where a person was coming only to Gibraltar because of the operation of Schengen rules linked to crossing the Schengen frontier for customs purposes.

He also said checks linked to residence permits would be carried out against the Schengen Information System and could be triggered by alerts from any Schengen state, not only Spain.

Mr Picardo also reflected on provisions allowing for expanded use of the airport, including flights to EU destinations.

He contrasted the treaty arrangements for the airport with provisions he said were envisaged in the 2006 Cordoba Agreement, stating that Gibraltar Airport would continue to be owned by the Government of Gibraltar and operated by Gibraltar Air Terminal Management Limited.

He said a new 50/50 Gibraltar-Spain company would determine future tenders for the operation of the airport but would not itself operate it.

The Chief Minister also referred to treaty articles affecting banking, saying these were not bespoke to Gibraltar but mirrored provisions in the UK-EU Trade and Cooperation Agreement and were reciprocal.