ESC urges UK to ‘stop and take stock’ amid concerns treaty could ‘erode’ British sovereignty

The European Scrutiny Committee has urged the UK Government to pause the negotiation for a UK/EU treaty on Gibraltar, raising concerns some arrangements under discussion could erode British sovereignty “to the point of meaninglessness”.

In a letter to Foreign Office Minister David Rutley, European Scrutiny Committee Chair Sir William Cash called on the UK Government to “stop and take stock” and clearly set out its negotiating red lines during so that all stakeholders could have their say.

In the letter copied to Prime Minister Rishi Sunak, Foreign Secretary, Lord Cameron, Secretary of State for Defence, Grant Shapps and Chief Minister Fabian Picardo, Sir William claimed current negotiations would lead to a “Northern Ireland Protocol 2.0” over Gibraltar’s frontier with Spain.

Arch-Brexiteer Sir William flagged the concerns after Mr Rutley gave evidence on the negotiation to the committee last week.

“The unique cultural and constitutional status of Gibraltar within the UK family must be respected,” Sir William said.

“At the same time, we are acutely aware of the importance of a deal for Gibraltar’s future prosperity, especially one that provides for border fluidity.”

“There is therefore a balance to be struck.”

But in the committee’s view, the evidence so far on introducing Schengen controls at the airport pointed to what Sir William said was a serious diminution of UK sovereignty.

He said the committee saw no good reason why the Schengen border should be moved to the airport, adding that this was evidenced by the flexible way in which it had been administered by Spanish authorities since the UK’s withdrawal from the EU.

“Allowing current Schengen checks to be administered by Frontex border guards at the airport would erode UK sovereignty to the point of meaninglessness,” Mr Cash said.

“From your evidence, we suspect that the UK Government is prepared to concede an arrangement that will leave Gibraltar’s frontier British in all but name.”

The Committee said a Schengen border at Gibraltar’s airport could not be compared to the UK’s juxtaposed border controls at Dover, Folkestone and St Pancras, where European officials conduct immigration checks.

“This is for the simple fact that, as far as we are aware, the Government are not negotiating a similar arrangement with the EU for UK/Gibraltar border checks to be administered in La Línea,” Mr Cash said.

“What you described is one way and will not be reciprocated by Spain.”

“Furthermore, the juxtaposed arrangements relate to travel between the UK and a foreign territory, which is not the case in relation to Gibraltar, which is British sovereign territory.”

He said the implications of the proposed agreement were “seismic”, describing how Mr Rutley was unable to reassure the committee that UK nationals and Gibraltarians wishing only to enter Gibraltar would not have to undergo Schengen checks.

According to the Committee, the scenario of UK and Gibraltarian nationals being refused entry to Gibraltar by EU border guards had not been ruled out.

“It also appeared that you had not considered the potential implications of the EU’s soon-to-be introduced ‘Entry/Exit System’ for a Schengen border at Gibraltar’s airport, and were unable to exclude UK/Gibraltar nationals having their biometric information recorded and stored by the EU,” Sir William said in the letter.

“This would be completely unacceptable.”

He added that the idea put forward by Mr Picardo of a ‘Schengen shack’ at the airport, which could be located at the Spanish side of the airport, should be explored further.

In the Committee’s view this would mean that all checks within the airport would remain Gibraltarian, with the border remaining in its current location.

“Any role for Spain in the management of the airport or change to its status, no matter how seemingly small or innocuous, must be ruled out,” Mr Cash said.

“The airport and the isthmus on which it sits are of significant strategic importance, and their future cannot be risked for an air service agreement covering a handful of commercial flights per year from Gibraltar to EU Member States.”

He said the committee was concerned the airport had been “inserted” into negotiations at the insistence of Spain and that the UK Government had “not been sufficiently robust in removing it from the table”.

The Committee also sought clarity on whether time spent in Gibraltar by UK nationals would towards the 90 in 180 days permitted for non-EU nationals in the Schengen Area.

“This is especially worrying for those in Gibraltar who hold certain Civil Registration cards and have faced problems crossing into Spain in recent years, for example, those with Blue ID cards,” Mr Cash said.

Evidence on which part of the “Schengen rulebook” would be aligned with in respect to Gibraltar also remained unclear for Sir William, who questioned whether ‘hot pursuit’ of suspected criminals by Spanish police into and around the Rock would be envisaged.

He also asked for clarification on whether Gibraltar’s courts may be required to refer questions on the interpretation of EU laws to the European Court of Justice.

On the trade aspects of any deal, he saw “no good reason” why anything other than “basic level playing field provisions” should be agreed with the EU.

Sir William said a replication of the Northern Ireland Protocol for Gibraltar would be “totally wrong”.

He added that, to his knowledge, there had not been any consultative engagement with the people and businesses who would be subject to a ‘Gibraltar Protocol’.

The Committee advised negotiators to “stop and take stock” after the last evidence session and returne with “clear red lines” on the UK Government’s Gibraltar negotiations.

“Serious consideration should be given to pausing negotiations so that the opinions of all interlocutors can be canvassed, including Members of this Committee and the House,” Mr Cash said.

“It is worrying that negotiations have reach such an advanced stage without the Government having shared their direction of travel.”

“Scrutiny improves Government decision-making.”

“There is no deadline by which time a UK/EU agreement must be reached; it is far more important that a deal is concluded that commands the support of all of those it engages.”

“It is important that space is provided for open debate and public scrutiny of any deal, before it is agreed.”

“However, Gibraltar negotiations have been shrouded in secrecy.”

“Members in the Commons, those in Gibraltar’s parliament, and people and businesses have been kept in the dark, and little information has been made public on the specifics of what is being negotiated.”

“This is wholly unacceptable.”

“Everyone it engages should have the opportunity to assess the deal before it is concluded; it should not be presented as a binary yes/no after the detail has been agreed.”

“To do so would be to offer a fait accompli.”

Sir William said a deal following the contours that Mr Rutley “appeared to outline” to the committee on last week would be “bad for the UK politically, constitutionally and militarily, and should be ruled out immediately”.