Commons committee backs Gib treaty but calls for full scrutiny and vote

The Foreign Affairs Committee of the House of Commons is “very supportive” of the UK/EU treaty on Gibraltar but has underlined the need for parliamentary scrutiny of its “complex and unprecedented” provisions.

In a letter to Stephen Doughty, the Minister for Europe, the Americas and the Overseas Territories, committee chair Dame Emily Thornberry said the Commons must have the opportunity to debate the detail of the agreement and vote on whether to ratify it.

She was writing following publication of the treaty text on February 26.

“The Foreign Affairs Committee is very supportive of an Agreement that will bring to an end the long-standing uncertainty around the continued fluidity of Gibraltar's border with Spain, which over recent decades has done so much to contribute to the prosperity of not only Gibraltar itself but also that of the Campo de Gibraltar in Cadiz,” she said in the latter, dated March 2 and published on the committee’s website on Wednesday.

“We congratulate all those involved with the negotiations on making so much progress.”

But despite this upbeat sentiment, Dame Emily expressed concern about the scope for MPs to properly scrutinise the deal and raise any objections.

“To ensure that the final treaty is in the interest of both Gibraltar and the UK, Parliament must have the opportunity to scrutinise the detail and raise any issues of concern,” she said in the latter.

“It is clear this treaty contains several novel or indeed unique provisions relating to Gibraltar's association to the EU's Schengen area, Customs Union and Single Market for goods.”

“Given the complexity and length of the draft agreement, which runs to over 1,000 pages, more time will be needed for Parliament to fully digest the implications of what the Government has negotiated.”

“As the debate following your statement on 26 February showed, there are still outstanding questions on range of issues relating to the practical implementation of these new arrangements, as well as the provisions safeguarding the UK's sovereignty over Gibraltar and the autonomy of its military infrastructure there.”

The UK Government has previously said the agreement will be laid in the UK Parliament for scrutiny before ratification in accordance with the Constitutional Reform and Governance Act 2010, known as the CRAG Act.

Under the CRAG process, the UK Government cannot ratify a treaty unless it has first laid the signed treaty before Parliament for 21 sitting days, along with an explanatory memorandum.

If, during those 21 days, the Commons passes a resolution that the treaty should not be ratified, another 21-sitting-day delay to ratification is triggered.

This process may be repeated continuously, though no such resolution not to ratify a treaty has ever been passed by the Commons.

A House of Lords resolution against ratification does not delay ratification.

In her letter to Mr Doughty, Dame Emily said the CRAG process did not guarantee “meaningful parliamentary scrutiny”.

“I was disappointed that, when offered the opportunity to do so in the Chamber, you declined to affirm that the treaty will be the subject of a vote in the UK Parliament,” she said.

“This is puzzling, given that your Department said in June that ‘the final Treaty will be subject to ratification by the UK and Gibraltar parliaments’.”

“That firmly indicates a formal role was envisaged for Parliament in this process, beyond the treaty simply being laid for our information.”

“As our forthcoming report on the UK-EU reset will emphasise, the Foreign Affairs Committee is firmly of the view that the House of Commons must have the opportunity to debate the detail of the Gibraltar Agreement.”

“Given its constitutional significance, it should also be allowed to vote on its ratification.”

She said a vote in the Commons would establish parity with MEP in the European Parliament, which will also need to approve the treaty’s ratification.

“As such, we are writing to seek your assurances that the Government will make time in the Commons for a debate and vote on the Agreement, ideally before the new arrangements in Gibraltar are applied but in any event before the UK formally ratifies them,” Dame Emily said.

Dame Emily noted that the European Commission had indicated the agreement would be provisionally applied before formal ratification.

All sides in the negotiation want the treaty provisionally in place by April 10, the date that the EU’s new automated border control system, known as the Entry/Exit System, comes into full operation at all EU external borders.

Given the CRAG timescale, the agreement cannot be ratified ahead of full EES implementation on April 10, hence the focus on provisional implementation.

“We understand this would in particular prevent the significant disruption that would occur if Spain were to implement the EU's new Entry-Exit System at the Gibraltar border from 10 April, which it would be required to do under EU law in the absence of these new arrangements,” she said in the letter to Mr Doughty.

“The decision to avoid this outcome by having recourse to provisional application is understandable.”

“It is nonetheless regrettable that, owing to the length of the negotiations and the minimal information on the technical detail of the treaty that was shared prior to publication, there will now only be an extremely truncated window for scrutiny should Parliament wish to express a view on the Agreement before it is applied.”

“In any event, the decision to provisionally apply the Agreement does not, and should not, preclude a meaningful parliamentary scrutiny process.”