As Brexit MoUs are published, UK confirms Gibraltar's primary role
The UK Government has given written confirmation of Gibraltar's primary role in the Brexit negotiation and the implementation of agreements stemming from the EU divorce deal.
The Gibraltar Government's central role and competencies are clearly defined in a legally-binding document, known as a Concordat, agreed by Prime Minister Theresa May and Chief Minister Fabian Picardo in No.10 Downing Street earlier this month.
The text dispels any suggestion that the Brexit divorce arrangements relating to Gibraltar were agreed bilaterally by Spain and the UK.
The Concordat was published today alongside the text of four agreements stemming from the Gibraltar Protocol in the UK/EU Withdrawal Agreement between the UK and European Union.
The four Memorandums of Understanding are the product of months of intense negotiation between the governments of Gibraltar, the UK and Spain.
They provide a time-limited framework for cooperation with Spain on issues including citizens’ rights, tobacco, the environment and police and customs matters.
Importantly, they state explicitly that nothing in the agreements modifies in any way the positions of each party on the issue of sovereignty.
The memorandums "...make no concessions on sovereignty, jurisdiction or control," the Gibraltar Government said in an explanatory note.
The three governments have also agreed a separate deal relating to tax matters but this is still undergoing legal checks and has yet to be finalised and signed.
The MoUs and the tax deal will only come into effect if the Withdrawal Agreement is approved in December by the House of Commons, where Mrs May faces stiff resistance from both her own Conservative Party and the opposition benches.
The MoUs were negotiated by the Gibraltar Government with the UK and Spain, and relate to areas which, under the 2006 Constitution, are the competence of the authorities here.
But Gibraltar itself cannot sign international agreements and yesterday, Mr Picardo wrote to Mrs May telling her that his government had approved the application to Gibraltar of the protocol within the Withdrawal Agreement.
The Chief Minister also informed Mrs May that the Gibraltar Government had agreed that the four MoUs referred to in the Protocol be signed by the UK.?
As a result, the MoUs were subsequently signed by the UK’s de factor deputy Prime Minister, David Lidington, and Spain’s Minister for Foreign Affairs, Josep Borrell.
In the Concordat, a separate but crucial document, the UK has made clear that any reference in the Withdrawal Agreement “when the context so requires” is in fact a reference to Gibraltar.
“As such, the commitments entered into by the United Kingdom in the Protocol and the MoUs have been entered into with the consent of Her Majesty’s Government of Gibraltar and following its participation in the negotiations,” the Concordat states.
The document sets out the UK’s interpretation of the Withdrawal Agreement and Gibraltar’s constitutional competencies in its implementation.
It states explicitly that the implementation of the Gibraltar Protocol in the Withdrawal Agreement “…will fully respect the constitutional arrangements in place in respect of Gibraltar and in particular the Constitution of Gibraltar of 2006.”
“As a consequence, the rights and obligations in the Protocol will be enjoyed by and performed by the Government of Gibraltar, and in particular the Gibraltar Government Ministers and other relevant Gibraltar competent authorities.”
Under the terms of the document, the UK will remain ultimately responsible in international law for Gibraltar’s compliance with the protocol, much as it is now for Gibraltar’s compliance with EU law.
The Concordat between the UK and Gibraltar was signed by Mr Picardo and David Lidington, the de facto Deputy Prime Minister of the UK.
Mr Picardo said the MoUs on practical cooperation were “safe, sensible, and secure”.
“They provide a way forward as we prepare to leave the EU,” he said.
“They are also time-limited to the end of the transition. In other words, at the end of 2020, the agreements will cease to have effect.”
He said the Concordat provided additional guarantees and safeguards for Gibraltar and allowed no room for interpretation, making it “abundantly clear” that Gibraltar participated through its own constitutional and legal instruments, and its own authorities.
The Chief Minister said Gibraltar had given nothing away in negotiating the MoUs, adding that the Rock would now benefit from a soft exit from the EU assuming the Withdrawal Agreement survived the Commons vote.
“Sovereignty, jurisdiction and control are not affected in any way,” Mr Picardo said.
“What we have entered into are commitments to deal with issues we are as concerned about as our neighbours.”
“We are giving effect to our own unilateral policy on tobacco pricing, as I have been saying and doing since I was elected to ensure that we avoid being attractive to those involved in the illicit trade in tobacco whilst protecting our legitimate trade.”
“We are delivering cooperation between police and customs, which successive governments of Gibraltar have supported, but without in any way compromising our sovereignty or jurisdiction in any way.”
“We are agreeing to cooperate on the environment in a manner that will allow us to request information in relation to matters we have long been concerned about and have wanted to ensure that air quality comes into the mix as well as matters related to cross boundary effect of reclamations, given our particular concerns about the effects of the Algeciras reclamations.”
“And on Citizens‘ Rights we have agreed reciprocal arrangements to monitor in our areas the rights and obligations set out in the main Withdrawal Agreement.”
“For that reason, if the UK Parliament approve the Withdrawal Agreement, then the parts of it which relate to Gibraltar which we have negotiated for Gibraltar, work for Gibraltar.”
“I hope we will soon also be to publish the treaty on taxation which we are finalising.”
Spain’s Foreign Minister also welcomed the signing of the MoUs.
“These agreements are a good foundation for the negotiation on the future relationship and their application will generate benefits for citizens and a climate of better understanding,” Mr Borrell said on Twitter.
The British Government echoed that position and reaffirmed Gibraltar’s role in the process and its implementation.
“The Memoranda reflect our shared desire to work together in a spirit of trust and solidarity, and support the shared prosperity and security of Gibraltar and the neighbouring area,” the UK Government said in a statement.
“The UK signed the Memoranda in its capacity as the State responsible for Gibraltar’s external relations.”
“The governments of the UK and Gibraltar have also published a Concordat.”
“This states that the Memoranda and the Withdrawal Agreement’s Protocol on Gibraltar will be implemented in accordance with the Constitution of Gibraltar.”
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Main photo REUTERS/Jon Nazca