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Opinion & Analysis

Clause 22 may yet change, for better or worse

In the row over the EU’s Brexit guidelines and Gibraltar, one important fact has been repeatedly ignored: this is a draft document, it is not set in stone.

The offending clause 22, in other words, can change or disappear entirely before the European Council formally adopts a negotiating position. Interestingly, this is a fact that Spain itself has recognised explicitly.

The draft guideline states: “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.”

All the 27 members of the EU already have a veto on a future agreement between the EU and the UK, which must be approved unanimously. What this clause seeks to do is isolate Gibraltar within the EU-wide negotiating position, in effect giving Spain an additional say over the Rock’s future.

Spain is thus imposing its national obsession with Gibraltar on the other EU members. In the process, it has sparked a standoff with the UK before the Brexit talks have even started.

Will other EU countries accept their joint position being conditioned in this manner?

Even Spain’s Foreign Minister, Alfonso Dastis, remains cautious on this point, as he made clear during a lengthy intervention in the Spanish parliament last Friday, the day the draft guidelines were leaked.

“The guidelines will be defined between all of us,” Sr Dastis said. “Our intention is that this matter should be included.”

“The exact terminology, whether it is nominal or in a way that makes clear [the Spanish position], we will have to see, because the guidelines have to be agreed unanimously.”

“But certainly it is our intention that it be included.”

One interpretation of Sr Dastis' words is that the EU may yet adopt a more nuanced approach to this prickly issue. Conversely, of course, the EU's final guidelines could potentially state the Spanish position even more explicitly.

Spain, obviously, will have strong support from other EU countries.

Earlier this week, the chairman of the European People’s Party - the largest group in the European Parliament, made up of centre-right parties including Spain’s Partido Popular - delivered a stark, yet painfully predictable message.

“From now on, we will have the interests of the EU 27 in mind, not any more of the British side..,” said German MEP Manfred Weber.

“That is the outcome of the idea to leave the European Union, so you should not complain that we take only the Spanish interest in mind from now on.”

“That is the outcome when you leave this family. My feeling is that some of the politicians in London still have not understood what leaving the European Union means in the end.”

“It means to be alone. It means to be alone.”

But is it as simple as that? If, from the outset, Brexit talks risk going pear-shaped over an issue like Gibraltar, how is that serving the interests of the EU 27?

The EU and the UK both have huge interests in ensuring that a successful agreement is reached for a future relationship. They do not want talks to run aground on the Rock.

In the draft guidelines, the EU is being asked to give Spain a say over Gibraltar for the sake of a claim over a territory that it ceded over 300 years ago. It is a position that rides roughshod over the rights of 32,000 committed Europeans who instead wish to determine their own future. It is also a hypocritical position, given Spain has its own overseas territories in north Africa.

Gibraltarians would love to stay in the EU, but we are British and accept we must now leave with the UK, even against our will. That does not mean Spain should be handed the right to deny us access to whatever agreement the EU and the UK finally reach.

With clause 22, Spain wants the EU to hive off Gibraltar and turn it into a bilateral matter. The UK must resist this, as it has done to date.

“We have not entered into bilateral negotiations, among other things because the United Kingdom has shown no interest in such negotiations,” Sr Dastis told the Spanish parliament last week, although he insisted Madrid remained hopeful.

“I believe this is an area in which we can legitimately aspire to such bilateral negotiations with the United Kingdom taking place, because this is a special situation that uniquely affects only us two, and I think the [EU] institutions accept that.”

It would be great to think at least some EU governments disagree with Sr Dastis on that last point.

That may be wishful thinking though, as yesterday’s developments in the European Parliament suggest.

In a display of EU unity, the legislature's text repeated the same priorities set by the EU summits' chair Donald Tusk in his draft negotiating guidelines released last week. Even so, the parliament also warned against bilateral negotiations, insisting on a united EU stance.

Nothing is set in stone.

In the weeks ahead, we must work to ensure our position is, at the very least, known and properly understood. The UK must also reject any suggestion of Spain having a sole say over our future.

But as Mr Weber made clear, we must also be aware of where we stand.

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