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GSD says post-Brexit agreement must be ‘safe, enforceable and approved in referendum’

Johnny Bugeja

Any proposals for the Rock’s post-Brexit future that “directly or indirectly” impact on its political or constitutional status should be put to a referendum in Gibraltar before any treaty is signed, the GSD said.

The Opposition was reacting to an interview with Chief Minister Fabian Picardo published by the Chronicle earlier this week, in which Mr Picardo reflected on negotiations with the UK, Spain and the EU on Gibraltar’s future relations with the bloc.

In the interview, Mr Picardo said the discussions over Gibraltar were about matters relating to the Rock’s future relationship with the EU, and that the GSLP/Liberals “sought and obtained a mandate for that less than a year ago”.

He added, however, that any change to the status of Gibraltar could only happen after a referendum, although he said any such change would “unlikely…be directly linked” to talks on the Rock’s post-Brexit relations with the bloc.

The GSD’s position is that the Government must secure “the democratic legitimacy of the people” before entering into any treaty on the future relationship.

“If you sign the treaty first and then put it to a referendum, you are accepting the principle that you can sign treaties without the support of the people,” said Opposition leader Keith Azopardi.

“As it would be the UK [signing the treaty on Gibraltar’s behalf] because we are not an independent state, I prefer the other way which secures democratic legitimacy first.”

In setting out its position, the GSD highlighted the controversy surrounding the tax treaty, which the Gibraltar Government insists is beneficial to Gibraltar but which the GSD says is “harmful and intrusive”, and was agreed without prior consultation and debate in Parliament “in breach of previous assurances by Government”.

There should be “no repetition” of that, the GSD said.

In the interview, Mr Picardo said the negotiations on Gibraltar’s future relations “have not really started in earnest yet” and that the first step is to reach agreement “on principles”.

“We want maximum mobility,” he told the Chronicle, setting out Gibraltar’s key aims.

“We will not countenance any incursion into our sovereignty, jurisdiction or control of our territory.”

If there is any attempt to cross those red lines, Gibraltar will walk away, Mr Picardo added.

The GSD echoed that sentiment and said any agreement on principles should not detrimentally affect Gibraltar’s sovereignty, jurisdiction and control of its land or waters.

Any final agreements, the GSD said, should be safe for Gibraltar, respect the fundamental rights of the Gibraltarians and their separate identity as a people, and be enforceable to ensure that if the people of Gibraltar back such a deal in a referendum, they have guarantees that it will be recognised and carried out.

But the party said too that while the post-Brexit talks provided an opportunity for achieving “a new, positive and permanent relationship with the EU”, the path was “fraught with danger”.

It said that while the Gibraltar Government should be ambitious in its aims, it must also be alert to the risks involved, something which the Chief Minister himself had “openly” acknowledged.

“We are clear in the GSD that our sovereignty is not up for negotiation and that, if it is necessary to walk away from those talks or no agreement is possible, our community will withstand any period of adversity and emerge stronger as it has before,” the GSD said in a statement.

The GSD’s view of the opportunities and challenges present by the talks on Gibraltar’s future relationship with the EU had been set out by Mr Azopardi when the Governor, Vice Admiral Sir David Steel, was sworn in earlier this year.

Mr Azopardi had described the talks as opportunity to see “a recalibration of the dynamics” between “this micro-territory” and both the EU and Spain.

“In respect of the latter much remains to be seen but we hope that the chance is taken by Spain to accept a respectful modern European relationship with Gibraltar,” he said at the time.

“One where our rights are recognised and respected and our people enjoy freedoms of movement across the border.”

“We are, after all, Europeans by inescapable geographical destiny. And in that opportunity we should be bold and imaginative in mapping out what we want as a people…”

“Let us not just drift on the agendas of others. Let us set out our own ambitious set of goals….”

“This is our land and sovereignty rests in our people who confer democratic legitimacy on our laws and institutions.”

“What else does that mean other than that our agenda for the future should be as ambitious as possible in recognition of those rights to self-determination and the fact that the future is ours to decide and no-one else’s?”

The GSD said that, just four months from the end of the transition period on December 31, there was very little time to conclude any discussions successfully.

But the Opposition said it supported any attempt to explore the possibility of achieving “a modern, stable and prosperous new relationship with the EU and Spain” in which Gibraltar enjoys “a respectful and progressive relationship” with Spain and the wider EU.

The GSD noted that the Chief Minister had spoken publicly about the process his Government was involved in and some of the possible scenarios he was contemplating, including the prospect of freedom of movement agreements, some form of Schengen or customs union deal, as well as a package “that may conceivably touch upon Gibraltar’s status”.

The party said it was not involved in those discussions, although it has had a number of informal briefings on the process that the Government is following, as has Together Gibraltar leader Marlene Hassan-Nahon.

It acknowledged that Mr Picardo had spoken of the need to reach agreement of principles before the talks can proceed to agreeing legal detail, but said this too raised some concerns.

“First that the Opposition has not seen any draft documents that may have been prepared in the ongoing process or that could lead to understandings of principle, [and] still less have we been involved in the drafting of such a document of principles,” the GSD said.

“We do not even know if one exists in draft form.”

“Secondly, while any agreements of principle may fall short of being enforceable, they would constrain any subsequent discussions of ‘legal detail’ that leads to a treaty.”

“As such the ‘principles’ stage is as important as the subsequent legal detail. Indeed on one view it may be more important as it will constrain the conceptual latitude that subsequent discussions could have.”

In the interview, Mr Picardo had signalled that the discussions are still some distance from any agreements of principle.

The GSD, which believes the outcome of this early stage could compromise future negotiations, said it would carefully scrutinise any new MoUs or agreements of principle that emerge.

“We are sceptical whether this is possible with the present volatile political backdrop in Spain,” the party said.

“Nevertheless the GSD remains hopeful that, if the discussions are properly handled, a positive set of agreements could emerge which safeguard and protect our interests and our fundamental rights and aspirations.”

“The Government must tread carefully in seeking such agreements.”

“We are clear about what Gibraltar’s red lines should be in that process."

In the statement, the GSD said it would be willing if invited to play “a more meaningful role” in any discussions if it formed the view that the public interest of Gibraltar required it and the talks were safe.

“This has never been about partisan politics for us because Gibraltar is at a crucial juncture in our history and we must skilfully navigate the post Brexit challenge,” the party said.

Mr Azopardi added this had been the long-standing position of the GSD dating back to his predecessors as part leaders.

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