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Opinion & Analysis

‘Framework agreement raises questions of jurisdiction and control’

by Keith Azopardi, Leader of the Opposition

I want to talk about the Agreement with Spain but before that can I express my deepest condolences to all those who have lost family members and friends to the COVID virus.

There’s no doubt that as we edged closer to the end of last year Gibraltar breathed a sigh of collective relief when told that finally a political agreement had been reached on a possible future relationship with the European Union. After all we were barely 9 hours away from the deadline. The UK had already bagged a deal for itself on Christmas Eve and we were at risk of being the only territory to be leaving without a deal and suffering a hard BREXIT with all the consequences that would have had.

We want a safe and beneficial agreement so to be told there was a deal was welcome to many people and we understand that. But of course, the actual text of the Agreement had not been published till eventually leaked by a Spanish newspaper on 11 January. That is when we, the Opposition, saw the final text too.

The Political Agreement is not binding but may lead to a legally binding international Treaty in a few months. It bought Gibraltar time and stopped us going over the cliff-edge to a hard Brexit. It’s important to be honest about what the Political Agreement says and its effects.

It is also important to understand where Gibraltar was. Despite our overwhelming desire to stay in the EU we’ve left. Despite being the part of British territory that had the highest percentage of remain votes we were the only part that did not have a deal after Christmas Eve. The 2018 Withdrawal Agreement only gave frontier workers enduring rights of freedom of movement after 31 December 2020. We have, previously, described the failures to get a better deal in 2018 as a lost opportunity for Gibraltar. It meant that we entered this round of negotiations at a disadvantage.

The Government had four and a half years to strike the best deal possible and after November 2018 still had more than 2 years to enter into an agreement for a future relationship. The UK did that for itself. The UK-EU Treaty is more than 1400 pages long. In Gibraltar we did not get a legally binding agreement – all we salvaged from the process was an 8-page political framework that buys us time to get a safe and beneficial Treaty in the next 6 months. Wasn’t that a failure of the Gibraltar Government?

So it is also important to be realistic about what was obtained.

Our departure from the EU is unwanted but it created the inevitable reality that things could not stay as they were. We are no longer in the EU. In deciding to leave the EU the UK’s interests and that of Gibraltar were different. The UK wanted to end freedom of movement once and for all. We wanted to secure freedom of movement once and for all.

The reality of being outside the EU is that we lost rights we had enjoyed over the last 50 years and now need to secure rights starting from zero. It also meant that our economic model has to adapt. Those issues can affect your quality of life, our freedoms and economic sustainability. Again those are realities. We are Europeans, in mainland Europe destined to live in this corner of the Southern Mediterranean– also a reality.

So when we look at the agreement reached it is important to factor in what a hard Brexit could have looked like on 1 January. But equally it is important to be clear and honest about what the Government agreed. So far, their public explanations have been based more on how they hope the agreement is interpreted than what it actually says. If we are going to have a proper debate then there’s a need for political honesty.

Everyone can now see what it says. In a recent interview Sir Peter Caruana said that given the position we’d been placed in there would be a price to pay to get benefits in exchange. And the question was whether the price was worth paying. That is reality. And that is the honesty needed in this debate.

This Agreement has flaws and pitfalls. To pretend otherwise is political Disneyland. The real question is whether despite the flaws the price for a Treaty based on this agreement is worth paying? The Government says there are no concessions. But that is pure spin to make themselves look good.

There are positive aspects to it – the possibility of securing mobility across the EU or securing economic or other benefits for our people are things that we would want in principle. But at what price? We have some serious reservations. The Agreement gives Spain powers over tasks that will happen in Gibraltar. It gives Spain the responsibility to conduct Schengen checks, protect our external border and potentially hands to them a number of economic measures of control that can affect our sustainability. These would be beyond those they already secured under the Tax Treaty.

There is no doubt that there have been concessions on jurisdiction and control. How else would Spain acquire responsibility for certain tasks to be performed in Gibraltar. For an interim 4-year period Spain will seek the assistance of Frontex. Yes, the agreement can be terminated after then but let’s be clear we are left with a choice between hard Brexit or Spanish officers in 4 years’ time. And the Government agreed that.

Even before the end of the 4-year period Spain will have immediate ultimate responsibility for the authorisation or refusal of entry into the Schengen area at the airport and port. Spain will also have the right to carry out checks of persons and their belongings at the port facilities and controls relating to cruises or marinas. During the 4-year period that Frontex do those tasks they will receive instructions from Spanish officials. Decisions regarding Schengen procedures will also be taken by Spanish officials. Spain will be competent to issue short-term visas for entry into Schengen through Gibraltar and we will need to align our policy on residence permits with “Spanish standards.”

Spain will also have joint responsibility for external border surveillance. Does that not mean that under the Agreement Spain will have the excuse that it is protecting the external border when coming into our waters with their launches. They do it now without permission. Why do we think it won’t happen when we give them legal permission to protect the border?

In exploring the possibility of a bespoke customs union arrangement Spanish aspirations are to secure intrusive economic measures of control in relation to pricing or that can impact investment or revenue into Gibraltar building on the gains it achieved in the Tax Treaty. Alongside economic controls there would be a regime of physical customs checks which again would have to be carried out at the port and airport.

The Chief Minister says he’d never bring a law to our Parliament to give Spain responsibilities or jurisdiction in Gibraltar. But he’s already agreed to that. Paragraph 6 of the Agreement says that Spain will have responsibilities for Schengen implementation and the protection of the external border and that Gibraltar will ensure that “legislation gives effect to these arrangements.” Doesn’t that mean that the Government will need to introduce laws that gives Spain those responsibilities and the power to give instructions to Frontex?

All those issues raise questions of jurisdiction and control – indeed concessions. They also raise the potential for a number of political and economic trojan horses. Those are realities. Anything else is fiction. Anything else is to tell the people not what the agreement actually says but what the Chief Minister would like it to say. I am not going to pretend that the agreement says something that it does not. I urge you to read it and make up your own mind.

This is the Government’s agreement – no one else’s. We offered them our help to jointly negotiate the best deal for Gibraltar. They decided to go it alone in 2018 and they decided to go it alone last year. They’ve had 4.5 years and this is what they have obtained – an 8-page non-binding framework when the UK got a binding Treaty of over 1400 pages securing rights for its businesses and citizens. Again, those are realities.

Yes, we’ve been briefed from time to time on what the Government was trying to do. But we haven’t been involved in the negotiations or had a real opportunity to influence them. We’ve seen some draft documents. I first saw a version of the Framework on 14 September. At that stage it was largely innocuous and did not have the deficiencies of the final version. The next time I was shown any draft was in mid-November. By then the draft Framework gave rise to serious concerns about jurisdiction and control. After considering these with my colleagues I wrote to the Chief Minister on 17 November 2020 expressing serious reservations.

In my letter I warned him that there were deep in-roads on jurisdiction and control that we considered were unacceptable. I specifically warned him about the effect of the clauses on Spanish responsibilities. The next and last time we saw a draft was on 14 December. This version was largely unchanged. Ultimately instead of being improved the Agreement has been entered into with most of the flaws we warned about in November.

There are now 6 months of further negotiations lying ahead leading to a possible Treaty. We are still in time. We’ve given the Government space to negotiate conscious of the difficult juncture Gibraltar found itself in. We continue to believe that a good, safe and beneficial Treaty is possible and these flaws can be cured. That’s what we want. We will remain vigilant and working hard to ensure that the prospects of that are maximised.

This is the text of a New year message from the Leader of the Opposition, broadcast on GBC on January 18.

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