Parliament unanimously calls on UK to ratify treaty

The Gibraltar Parliament gave unanimous support on Wednesday to a motion calling on the UK to enter into the UK/EU treaty on Gibraltar, effectively triggering the ratification process in the UK Parliament.

Cross-party support came after two days of intense debate during which MPs acknowledged that the treaty, while “imperfect” in the words of Chief Minister Fabian Picardo, was better than the “catastrophic” alternative of no deal.

The treaty will guarantee border fluidity by removing land immigration controls, replacing them with dual Gibraltar and Schengen controls at the airport, the latter conducted by Spanish police from inside a shared facility that will span the border line.

It will also create a bespoke trade framework with the EU Customs union.

But while there was unanimous support for the motion, the GSD expressed “profound misgivings” about many of its provisions, in particular relating to police.

Opposition Leader Keith Azopardi said the Government had done a U-turn on commitments that there would be no Spanish “boots on the ground”.

The Government repeatedly insisted that this red line had not been crossed because of the way in which the shared facility was structured, and that Spanish officials would only be involved in Schengen checks as the guarantor to other member states.

But Mr Azopardi countered that this was about Spanish “presence”, dismissing what he described as the Government’s “mental gymnastics” on this issue.

The Opposition’s concerns centred on its belief that the deal, while protecting legal sovereignty, could hand Spain and the EU levers with which to exert influence in Gibraltar, and that these could be abused in future.

It also believed that a clause allowing for termination with a 12-month notice period provided “uncertain certainty” for business and individuals alike.

But it concluded that if there was to be “a leap of faith”, it should not be in the direction of no deal, adding a future GSD Government would strive to make the treaty a success.

GUARANTEES

Parliament backed the motion having first amended it to make it conditional on the UK and Gibraltar agreeing a concordat – a formal document that will be laid in both the UK and Gibraltar parliaments – stating clearly that Gibraltar would have a “trigger” to terminate the treaty if need be, and to influence anything arising from it.

Any decision by Gibraltar to terminate the treaty would be put to a referendum.

The treaty text gave the UK and the EU, as signatories, powers to end the agreement. The EU, because of its legal structure, also agreed to give Spain those termination powers.

Gibraltar, because of its constitutional relationship with the UK, will obtain similar guarantees in the concordat from the UK Government, which is the signatory of the treaty in respect of Gibraltar.

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

“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 said in the letter, which was read out in Parliament.

“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.”

While the motion was amended to ensure Gibraltar could terminate the agreement in future if need be, Mr Picardo noted too that the debate on the motion was itself an exercise of sovereignty and was “actually the start button”.

Despite some clear differences, the tenor of the debate this week was respectful and serious, with only a few minor flashes of the partisan swipes that characterise most parliamentary sessions.

Numerous MPs highlighted the historic nature of the treaty and the debate, describing it as a “seminal moment” for Gibraltar.

In closing the debate after the vote, Mr Picardo said all Government ministers supported the deal and believed it was safe and beneficial for Gibraltar, including Sir Joe Bossano, “the hawk of hawks” in defending Gibraltar politically for decades.

“We have what it takes to make a success of this treaty,” Mr Picardo said.

“And we have what it takes to turn around those who have never given us the benefit of the doubt before.”

“Nothing changes on Spain's sovereignty claim [and] we mustn't think or trust that Spain may change.”

“But we must be ready to do things in a different way and we must be ready to steel ourselves to grasp the nettle that this treaty presents and look forward to what we can do with the opportunities that it presents.”

DETAILS

Mr Picardo sought to give additional comfort to Opposition MPs and addressed some of the main concerns they had raised, in particular relating to Spanish law enforcement officers and the claim that Gibraltar had accepted “boots on the ground”.

He said the treaty “does not put boots on the ground”, while accepting it “definitely puts boots in the joint facility, definitely. But boots of both nationalities, the Spanish and British variety”.

“The boots will be there, but in the joint facility, not outside,” he said, adding that if his Government believed otherwise “then we would vote no to our own motion”.

Most immigration procedures would in any event be through e-gates.

“You’re not going to see an officer, you’re going to see a machine, and more and more,” he said.

He said Spanish officials already operated on occasion in Gibraltar, but “unregulated”.

Mr Picardo said he had been made aware of “a number of surveillance operations by Spanish police in Gibraltar without the consent of the Royal Gibraltar Police”.

He also pointed to existing cooperation mechanisms, saying there had been “proper mutual legal assistance” in the past, including instances where Spanish officers came to Gibraltar “out of uniform” and accompanied Gibraltar officers.

He added that there had also been instances where operations were permitted “which have not been within the mutual legal assistance provisions”.

“What does this do?” he said, of the treaty’s provisions on policing.

“This regulates what they’re already doing and it means that they cannot do it without consent or permission.”

On weapons, Mr Picardo said Opposition concerns that Spanish officers would be armed were misplaced.

The GSD had argued that the absence of any provision on arming meant it would likely be permitted, whereas Mr Picardo said the opposite was the case.

“Wherever they have not read that somebody will be disarmed, they should not for one moment reach the conclusion that actually they will be armed, because arming requires specific consent,” he said.

He said foreign police being armed in Gibraltar was not a new concept, explaining that “the Commissioner of Police is empowered under our laws, as they are today, to grant permission for people to bring arms into Gibraltar” depending on the risk assessment.

It has happened on numerous past occasions when high-profile international visitors have come to Gibraltar including royalty, for example.

“We are not going to bring a law to this Parliament…to say that anybody should be armed in Gibraltar if they’d like to be, without the consent of the Royal Gibraltar Police and the Commissioner of Police,” he added.

Mr Picardo also reflected on “hot pursuit” as a reciprocal law enforcement issue that would exist if there were no physical frontier.

He asked MPs to consider scenarios such as a child abduction or theft in Main Street and the consequences of Gibraltar police not being able to chase a suspect across the border.

He described the mechanism that had been agreed, including the requirement for notification and limits shaped by Gibraltar’s border geography that meant any pursuit would unlikely get beyond that area.

And he argued it amounted to recognition of Gibraltar’s jurisdiction.

“When the Spanish officers stop…they have to hand over their weapons to their Gibraltarian counterparts,” he said.

“They have to hand over the vehicle and hand over the person. On the isthmus.”

He said the treaty also envisaged situations where Spanish officers would appear before Gibraltar’s courts.

“No Spanish police officer has ever gone to the Gibraltar courts,” he said.

“Here they’re saying they will go to the Gibraltar courts. Recognition of our jurisdiction.”

Mr Picardo also addressed joint patrols at sea, saying the Government had supported an approach he said avoided provocation, with “vessels which are neutrally branded so that they’re not provocative to the populations of one side or the other”.

“They’ll be done in one boat with us together,” he said.

On residence permits, the Chief Minister pushed back against claims that Spain would decide who could live in Gibraltar.

“It’s not Spain deciding…it’s the Schengen area as a whole,” he said, explaining that any member state could raise concerns if serious issues relating to an applicant were flagged on the Schengen Information System, to which neither the UK or Gibraltar have access.

He said Spain would act “as a proxy for the Schengen States” because it was the neighbouring member state, and that the threshold for raising concern was “the highest hurdle” in EU law and that this was not a “loss of control by any stretch of the imagination”.

Mr Picardo also underlined the Government’s belief that the treaty would deliver the stability and certainty that Gibraltar required after the Brexit vote.

He said Gibraltar and the UK had worked for years on the concordat and the termination clause, reiterating the importance of the need for a “get out clause” and an “exit clause”.

But he said this did not mean uncertainty and that all treaties had a termination clause, even the Treaty of Utrecht.

Referring to the UK’s decision to exercise Article 50 of the Treaty on European Union and leave the bloc after the Brexit vote nearly a decade ago, he added: “Our debate today is about somebody else having pressed the termination button.”