In the row over EU guidelines, there is no clear winner

Prime Minister Theresa May was accused this weekend of forgetting to include Gibraltar in her Article 50 letter triggering Brexit. The correct question should be: does she regret the decision not to mention Gibraltar explicitly? Until Lord Howard brought up the Falklands, the answer was probably no.

The content of the Article 50 letter in as far as it concerned Gibraltar had been the subject of intense strategic and tactical discussion with the Gibraltar Government. It was a decision in which the Gibraltar Government had been fully involved, though not one with which it agreed.

Gibraltar was mentioned not explicitly, but tangentially. The text of the letter referred to a White Paper published earlier this year in which the UK set out in detail its position on a range of key Brexit issues, Gibraltar among them. The UK’s aims, the Article 50 letter stated, remained as set out in that White Paper. Last Wednesday, after her letter was delivered to European Council President Donald Tusk, Mrs May also made clear her government’s commitment to Gibraltar in a statement to the House of Commons.

While there was no explicit reference in the letter, neither the Prime Minister nor the British Government had forgotten Gibraltar.

But the question remains: why not mention Gibraltar explicitly? The UK’s thinking was that singling out Gibraltar for special treatment was to play into Spanish hands. London and Gibraltar knew Spain would add the Rock into the Brexit mix at some point. But the view in London was, let Madrid be the one that introduced its Gibraltar obsession to an already complicated divorce. Let Spain be the one who appeared unreasonable by raising a subject that could easily derail talks.

That was the theory at least, except the reaction in Britain did not go quite as planned. It was entirely predictable that Spain would seek support for its position from its EU partners. After all, the UK is leaving and Spain is not. Perhaps less predictable was that so many in the UK did not see it coming. The media frenzy was remarkable to watch, fuelled in large part by festering animosity between Remainers and Brexiteers. And then came Lord Howard with his Falklands analogy. The Tory grandee did not, in fact, declare war on Spain. But as the old cliché goes, never let the truth get in the way of a good headline.

In the end it was Spain, with its calm and restrained Foreign Minister Alfonso Dastis, which appeared to come out of the imbroglio looking like the reasonable party. At first blush, this was a diplomatic coup for Spain, and not what the UK had hoped for.

When the dust settles, however, the panorama could look somewhat different.

While the UK reaction appeared hysterical, it was largely fuelled by a feisty right-wing press and politicians past and present outside cabinet, and laced liberally with domestic party politics. Barring the odd slip of the tongue, the official government response, both in London and Gibraltar, was far more tempered.

Yesterday Sr Dastis confessed he was “a little surprised” - diplomatic speak for gobsmacked - by the tone of some of the reaction in the UK. Perhaps it is no bad thing that Spain understands the intensity of emotion that playing politics with Gibraltar can unleash. Spain, which has close economic and social links with the UK, has a huge interest in securing a successful deal for a future relationship between the EU and the UK. Sr Dastis is on record saying Madrid prefers a soft Brexit. In trying to play the Gibraltar card so early in the game, Spain has shown its hand and sampled the response.

But it is not all negative. Even in the midst of the media ballyhoo, Sr Dastis continued to send conciliatory signals about border fluidity, the single most crucial issue for Gibraltar. Time will tell, but there is some reason for cautious optimism on this front. We may find out sooner than anticipated, given the new Schengen rules come into force on Friday. These rules, which require systematic identity checks for everyone crossing the border, are not linked to Brexit. But how Spain implements them will be seen as a sign of things to come.

Likewise, as Defence Secretary Sir Michael Fallon pointed out on Sunday, the draft EU guidelines that sparked the weekend’s furore made no mention of sovereignty. Both Spain and the EU understand that there can be no change or discussion on sovereignty against the wishes of the Gibraltarians. That is an important recognition.

What the draft EU guidelines said was that Spain must agree to any new UK/EU trade deal being extended to Gibraltar, something which was widely interpreted as a veto. But Spain already had a veto on a future deal anyway, as does every EU member.

There is a view that the reference to Gibraltar in the guidelines was in effect seeking to quarantine Gibraltar to prevent it holding up an agreement. Past experience with aviation dossiers means the EU knows full well how things can easily stall.

The implication was that Spain would somehow have a separate veto over Gibraltar but in reality, the guideline may have no additional legal basis. Charles Brasted, a partner with law firm Hogan Lovells in London, told the Financial Times that no matter how it appeared, the negotiating document “cannot possibly give Spain a veto it does not already have”.

But even if it does, the guideline says no agreement between the EU and the UK may apply to the territory of Gibraltar “…without the agreement between the Kingdom of Spain and the United Kingdom.” If the UK does not accept that Gibraltar can be hived off in this way, then Spain only has its basic veto left. If Madrid exercises it, the whole thing would go pear-shaped, and that is a high price for everyone to pay just because Spain wants to make a point on Gibraltar.

The lawyers will have to unravel all of this in the coming days but in any event, we are still some way from the trade deal being negotiated, let alone agreed. The UK, Gibraltar included, has to exit first. Let us see how this long and complex process unfolds.

In the meantime, let us constantly and relentlessly remind the UK Government that it has a moral duty to fight our corner. London should start by stating, clearly and unequivocally, that any future deal with the EU must be extended to Gibraltar.

It is Spain that is acting unreasonably by using its territorial aspiration to try and condition Gibraltar’s future. In doing so, it is imposing a 300-year old fixation on its EU partners, and ignoring the wishes of 32,000 people.

Main photo by John Piris