Governor says treaty allows parties to ‘agree to disagree’ on sovereignty and focus on pragmatism

The Governor, Lieutenant General Sir Ben Bathurst, said the UK/EU treaty on Gibraltar had allowed all parties to “agree to disagree” on sovereignty, setting the issue aside in favour of a “very pragmatic” agreement focused on practical benefits for communities on both sides of the border.

Speaking to the Chronicle two days after immigration controls were lifted at the land border as the treaty entered provisional implementation, the Governor said its sovereignty clause was not simply a political declaration but a commitment set out in law.

For Sir Ben, that provision was central to understanding the agreement and addressing concerns raised by people in Gibraltar as the border barriers came down.

“It’s not just a throwaway line, it’s enshrined in a treaty in law,” he said.

“That’s really a tremendous achievement, to actually have in a treaty an agreement essentially to disagree on sovereignty and actually then move on to the more practical.”

The sovereignty clause in Article 2 preserves the respective legal positions of the UK and Spain on sovereignty and jurisdiction, allowing both sides to maintain, but not advance, their long-standing positions.

“Very neatly, [the sovereignty issue] has been encapsulated to all sides’ satisfaction and yet it doesn’t stop us moving on to matters of cooperation,” Sir Ben said.

“And, you know, if you are neighbours and friends in many cases, and allies, it should not be the barrier to sensible, practical cooperation.”

The Governor acknowledged the sensitivity of the sovereignty concerns and said someone who was not from Gibraltar could easily underestimate the significance attached to flags, uniforms and the presence of Spanish officers.

After two years on the Rock, he said he had become attuned to those concerns.

EDUCATION, TRAINING, LEADERSHIP

The treaty changes include Spanish officers carrying out Schengen checks from a shared facility at Gibraltar airport spanning both sides of the border, as well as closer operational cooperation in policing, customs and border security.

The Governor, whose constitutional responsibilities include security, acknowledged there would be occasions when people saw things they did not like, but said the treaty arrangements would require mutual respect and sensitive policing to avoid unnecessary friction.

Sir Ben’s main focus now was the detailed implementation of an agreement that had required years of negotiation.

“You know, you could almost say that the writing is the easy bit, the actual implementation is a harder thing,” he said.

The challenge would be ensuring officers and officials at every level on both sides understood what the treaty required and applied it consistently in their day-to-day work.

The Governor said Gibraltar’s relatively small size made it easier to communicate instructions through the Royal Gibraltar Police and other agencies, while Spain’s larger administrative structure inevitably involved more layers, as it would in the UK.

“It’s [about] education, training and leadership, and within leadership, supervision,” he said.

“I used to run Army education and training, and you can spend a lot of time educating and training, but if on a daily basis you’re not leading by example and you’re not supervising what is going on, then it will go wrong.”

Asked how changes of government might affect implementation if political sentiment shifted, Sir Ben said the agreement was a treaty between the UK and the EU and “that’s a much more difficult thing to change once it’s about the practicalities”.

He said established mechanisms were in place to address issues as they arose, as had been the case throughout the negotiations.

“We’ve got such a lot of work to do today, tomorrow and over the weekend and next week and what have you, I don’t think we want to be worrying about elections or what may or may not happen,” he said.

“The more we can concentrate and be positive and forward-looking about what’s happening in the short term, the more we embed this treaty as just normal, reasonable, basic life between two neighbours for mutual good, the less chance that there will be that any of us can disrupt it in the future.”

Existing cooperation between law enforcement agencies offered a foundation on which to build.

The Governor said there was already good operational contact between neighbouring police forces, customs services and border officials who shared common objectives in tackling crime.

“There was a lot to cooperate on,” Sir Ben said.

“So there is much more, I think, to work on between us than there is to divide us.”

SECURITY FEARS

Security concerns have formed part of the public debate since immigration controls were lifted at the border.

The Governor said it was necessary to distinguish between risks supported by evidence and public perceptions about safety, although both required attention.

He noted the increased law enforcement presence, including new vehicles north of the runway, and said authorities were changing how Gibraltar was policed rather than relying on a static immigration checkpoint.

Technology, including live facial recognition cameras, would form part of that approach.

Sir Ben said people’s concerns about security could not be dismissed even if facts pointed in another direction.

“But in the end, for most people, perception triumphs over statistical analysis,” he said.

In this context, Sir Ben warned that anonymous social media accounts, bots and artificial intelligence could be used to deepen divisions around Gibraltar and the treaty.

The Governor said he had noticed an increase in anonymous accounts commenting on political issues, although he stressed this was an observation and that he had no evidence of a coordinated campaign targeting Gibraltar.

He said some profiles appeared newly created, had few connections and used language suggesting they might not represent local opinion.

“I think these days any division can be exploited,” he said, urging social media users to examine account sources and histories before reacting to posts designed to provoke anger or divide people within Gibraltar's community.

The agreement was designed primarily around the needs of Gibraltar residents and frontier workers, who benefit directly from the removal of immigration controls at the land border.

One issue that has provoked online anger is the fact that UK residents arriving by air will be subject to the Schengen Entry/Exit System and time spent in Gibraltar will count towards their permitted 90 days in any 180-day period in the Schengen area.

“It’s just one of those things,” Sir Ben said, noting that non-resident UK nationals already had a 90-day limit on their stay in Gibraltar and did not have an automatic right to live on the Rock.

“It’s a treaty that benefits Gibraltar residents first and foremost, and that has been agreed between the government in the UK and the Government of Gibraltar as the best outcome.”

“I think in terms of counting towards 90 in 180 [Schengen days], that’s unfortunate.”

“[But] that is the consequence of the UK vote on Brexit.”

Sir Ben noted that up to 70% of passengers arriving from the UK were heading to Spain and would require a Schengen check in any event.

He said it was preferable for those checks to take place at the airport rather than create lengthy queues for vehicles and pedestrians at the land border.

The Entry/Exit System had experienced problems elsewhere in Europe too, he said, and any difficulties in Gibraltar should not be seen in isolation.

MILITARY OPERATIONS

Military operations were another key area in which the UK maintained firm red lines during the negotiations.

The Governor, who is also Gibraltar’s Commander-in-Chief, said the military base would continue operating normally and rejected suggestions that Spain would be able to determine which military personnel or goods could enter.

“The base will operate as normal and I know there’s been all sorts of misinformation out of there about whatever, but ultimately there is no impact on the base here,” he said.

Military personnel arriving through military channels will not have to pass through the Entry/Exit System, although practical arrangements will enable the UK to confirm to Spain that they are members of the Armed Forces.

Visiting personnel who wanted to cross into Spain while off duty would not be covered by the military exemptions and would have to complete the normal Schengen procedures.

A Spanish military liaison officer may be present when required, but Sir Ben said this should not be understood as a permanent posting or as giving Spain control over UK military movements.

The UK has also undertaken to keep military goods secure and ensure they are not transferred into the civilian market.

Sir Ben said these were reasonable assurances that reflected how the Ministry of Defence already operated.

“The reality is that between NATO allies and between UK and any EU defence element, cooperation is the best way forward,” he said.

“You know, we should be concentrating more on our adversaries rather than having any internal issues between us.”

The Governor also pushed back on the belief that the UK was interested only in Gibraltar’s military base.

“The main issue is actually Gibraltar’s self-determination and what the people of Gibraltar want,” he said.

He highlighted Gibraltar’s involvement throughout the negotiations and said the concordat and accompanying letter, together with the Constitution’s double lock, now offered what he described as a “triple-lock” assurance.

WIDER CONTEXT

Reflecting on the wider context in which the treaty was agreed, he said there were useful parallels with the UK/EU reset, even though the two processes had been negotiated separately.

The Gibraltar treaty showed that it was possible to reach “a very pragmatic outcome that is balanced on all sides” and could offer “a really useful guide”.

“So it shows it can be done, which I think is encouraging,” he said.

Sir Ben, who has childhood memories of Northern Ireland in 1969, where his father was serving as a naval officer and barriers were part of daily life, said Tuesday night last week, when the last of the frontier fence came down and immigration controls were lifted, was a “fantastic” moment.

As an army officer, Sir Ben also remembers going through the Iron Curtain and Russian checkpoints travelling to Berlin, where he was stationed when the wall came down in 1989.

“I’ve had a bit of experience of walls and fences going up, coming down, and I think, having been here now for two years, I’m reasonably attuned to just how significant it is for individuals, particularly those people who have lived through the closed border years,” he said.

He understood too the “psychological impact” and the “nervousness that it induces”.

The focus now should be on making the agreement work and addressing problems quickly when they emerged.

There would inevitably be issues, misunderstandings and points requiring further discussion with Spain and the EU.

Those should be dealt with constructively, he said, rather than immediately being regarded as a tactic or an attempt to undermine Gibraltar.

Because there was no threat to sovereignty, “we’re really, really clear on that”, he added.

“But we need to work on it and to make sure we’re true to the facts rather than to the disinformation that might be going about there.”