Govt dismisses GSD’s ‘legally flawed, politically wrong’ analysis of Brexit deal

The GSD’s analysis of the Gibraltar aspects of the Brexit Withdrawal Agreement is “legally flawed, politically wrong and totally unsustainable”, the Gibraltar Government said yesterday.

In a hard-hitting statement, No.6 Convent Place said the GSD’s analysis was “a cheap and transparent” attempt to “confuse public opinion”.

No.6 Convent Place was reacting to the GSD’s position on the divorce deal, which the Opposition party said “allows Spain a voice in our domestic affairs and a measure of control over these”.

“The GSD’s criticisms of the negotiations that I have led on behalf of the Government of Gibraltar in the context of the Withdrawal Agreement are utterly pathetic,” said Chief Minister Fabian Picardo.

“For the last year the Government has negotiated a difficult deal for Gibraltar that does not require us to make any concessions on sovereignty, jurisdiction or control or that undermines our Constitution.”

“It has been achieved, whether the GSD or Mr Azopardi like it or not.”

“In particular, we have succeeded in ensuring that Gibraltar will be part of the Withdrawal Agreement and its transitional period, if there is one.”

“We have done so by negotiating reciprocal cooperation, not by granting concessions.”

“Mr Azopardi considers this to be an insignificant achievement.”

“Not only have we not given any concessions but Gibraltar’s inclusion in the transition period is no mean feat.”

“As has been stated by Sir Peter Caruana ‘no-one in Gibraltar should be under any illusion about how serious’ crashing out of the EU on 29 March 2019 would have been for Gibraltar, what he described as ‘the calamity of crashing out of Europe, out of the EU in isolation from Britain’.”

“This is what we have avoided and I am proud of this achievement.”

CITIZENS’ RIGHTS
In its analysis, the GSD had accused the Gibraltar Government of giving away “Gibraltar’s biggest bargaining” by allowing frontier workers to be protected beyond the transition period.

The GSD said the MoU on Citizens’ Rights protected Spanish frontier workers and would not lapse at the end of the transitional period.

But the government said this was “quite a remarkable failure of understanding” of the deal.

The government said one of the most prominent features of the Withdrawal Agreement was that it protected citizens’ rights on a permanent basis and that this applied not just to frontier workers but to all EU nationals living in the UK and to British nationals living in the EU at the end of the transition period.

That protection existed independently of the Gibraltar Protocol in the Withdrawal Agreement and the MoUs that stem from it.

“All that the MoU does is to institute a basis for cooperation in relation to Citizens’ Rights, notably by the creation of a Committee, nothing more,” No.6 Convent Place said in a statement.

“Mr Azopardi does not appear to have understood this fundamental aspect of the Withdrawal Agreement.”

“Therefore, the effect of the Withdrawal Agreement as a whole is to protect, indefinitely, those who are exercising EU rights today.”

“In his lazy analysis Mr Azopardi has failed to understand that this includes a huge number of Gibraltarians who own homes in Spain today.”

“In particular it protects the rights of those Gibraltarians who live in Spain and commute into Gibraltar every day.”

“Mr Azopardi has forgotten those Gibraltarians. He has neglected a large number of people who need or choose to live in Spain, whose rights are also indefinitely protected.”

The government said the GSD had also “overlooked” the fact that the recognition of citizens’ rights underlined the importance of freedom of movement, and that the EU had confirmed British citizens, including all Gibraltarians, would have the right of visa-free travel into the EU.

BILATERALISM
The GSD had also stated that the MoUs agreed as part of the divorce package had been concluded bilaterally between the UK and Spain, adding that this represented “an abandonment” of gains made by Sir Peter Caruana in the Cordoba Agreement of 2006.

But the government hit back and referred to an interview Sir Peter gave recently to GBC in which he had said the Brexit negotiations could not be compared to the trilateral negotiations and differed “in a very big-time way”.

In Sir Peter’s words, the Cordoba agreements and the trilateral forum they stemmed from were “…a purely political project, there was no sense of international treaty, there was no sense of a wider member-state context”.

Sir Peter had told GBC too that this applied to the MoUs “which are also part of the structure of this withdrawal agreement” and “will have been entered into pursuant to an obligation contained in an international treaty” and that he thought it would be “unrealistic for anybody here to think that [Spain] is going to do [trilateral agreements] in the context of the EU”.

The GSD’s analysis was thus “unrealistic”, the government said, adding that the party had also glossed over the importance of the Concordat entered into by the UK and Gibraltar governments.

This document, No.6 said, was a “fundamental” element of the overall architecture of the agreements reached in relation to Gibraltar.

“The Concordat highlights the importance of the definition of the United Kingdom in Article 3 of the Withdrawal Agreement, which, for the first time ever in an EU treaty, explicitly includes and integrates Gibraltar in the definition of the United Kingdom, and makes it absolutely clear that the implementation of the Gibraltar Protocol and the MoUs will fully respect the Gibraltar Constitution and that all rights and obligations will be enjoyed and performed by the Government of Gibraltar and its competent authorities,” NO.6 Convent Place said.

DOMESTIC AFFAIRS
The Gibraltar Government also dismissed GSD claims that the Gibraltar Protocol envisaged UK/Spain committees to oversee implementation and that this gave Spain a say in Gibraltar’s domestic affairs.

No.6 Convent Place said the composition of the committees was set out in each of the MoUs, with the UK side made up of seven members.

Of those, one would be appointed by the UK Government, with the remainder appointed by the Gibraltar Government.

The Committee set up by the MoU on Police and Customs Cooperation, for example, will be composed of representatives of the Foreign Office, the Royal Gibraltar Police, HM Customs Gibraltar and the Borders and Coastguard Agency, “and it is clear from the MoU that the cooperation will be carried out by our competent authorities”.

The same applies to the MoU on Tobacco where the lead will be taken by HM Customs Gibraltar, No.6 said, while the Committee on the environment will be composed of the competent authorities, which on the British side means Gibraltar’s competent authorities.

“So, it is clear that we have not conceded anything, in any of the Memoranda, that usurps the rights of the Gibraltar Parliament or the Gibraltar Government who will be the ones who take the decisions in Gibraltar, about Gibraltar and about our affairs,” No.6 said.

“Even less, do any of the MoUs undermine any aspect of our Constitution.”

The government said it was “completely false” to suggest that the MoUs would allow Spain to encroach on Gibraltar’s domestic affairs.

It said the MoUs had been negotiated on the basis of reciprocity, adding that if Spain had was encroaching on Gibraltar’s affairs, “…then the Gibraltar Government has obtained a historic advancement since the MoUs impose reciprocal rights and obligations so we would be encroaching into the domestic affairs of Spain.”

Neither of those was true, the government said, adding that the MoUs had been concluded so as to establish cooperation in a geographical area defined as Gibraltar and the surrounding area in Spain.

On environmental matters, cooperation will cover air quality, water quality, projects that have transboundary effects, waste disposal. Cooperation will extend to all of these environmental concerns, wherever they occur.

On tobacco, cooperation will extend to examine illicit activities in the same geographical area.

The entire MoU on Police and Customs Cooperation is based on the objective of creating mechanisms that will allow law enforcement agencies on both sides of the border to cooperate with each other.

LONGTERM GAINS
The GSD had asserted that the Withdrawal Agreement had achieved no long term gains for Gibraltar.

But the government responded that the negotiation had been about leaving the EU and ensuring a transition period, not about the future relationship. It said the same position applied to both the UK and Gibraltar.

“The future will be dealt with in a separate agreement that will set out the future partnership between the United Kingdom, including Gibraltar, and the EU,” the government said.

“Again to quote Sir Peter Caruana: ‘The UK has no guarantees itself, has no assurances, about what deal it can get at the end of the transitional period… It's really unrealistic for Gibraltar to think that we could be in a better position than the UK and have some negotiated certainty about that for ourselves, when the UK doesn't have it for itself.’”

“That is correct. And that is the position.”

Pic by Eyleen Gomez