Mired in Brexit uncertainty
As negotiators resume talks again in London this week, it seems we are destined for another anxious festive season as we await an answer to a question that has dominated political discussion since 2016: will we, or won’t we, get a deal for the Rock’s future relations with the EU?
The red lines are clear in broad terms, as are the shared goals.
In the framework agreement reached in the final hours of 2020, the UK – with Gibraltar - and Spain said nothing in any treaty would change core positions on sovereignty.
There was consensus too on what they hoped to achieve, a treaty that would guarantee a fluid border vital to individuals and businesses on both sides.
That goal was summed up in a saccharine phrase repeated at every opportunity since December 31, 2020: Creating “an area of shared prosperity”, whatever that means in practice.
But squaring that aspiration with over 300 years of entrenched positions on sovereignty is no easy task.
It requires compromise to find a grey area of consensus between red battlelines, stitching together our British legal framework with the body of EU legislation and the institutions and jurisdictional reach established by both.
One line of text, one word, a punctuation mark even, could have unintended consequences in something so complex. The political implications for all parties are immense and getting it wrong is not an option.
On our side, we are guarding against anything that might chip away at the somewhat nebulous concept described as “sovereignty, jurisdiction and control”.
On the EU side, the key priority will be to protect the integrity of the Schengen area and the single market, avoiding anything that might undermine legislative agreements that bind 27 nations in common purpose.
As always, it’s the detail that matters most, but even reaching agreement on principles is proving difficult.
The temptation to slip into resignation and conclude it’s all far too difficult must be huge for everyone involved in this negotiation. It would be far simpler to walk away.
But over a year since the talks commenced, and nearly two years since the New Year’s Eve framework was agreed, they are still trying.
That, in itself, is a huge win in the history of cross-border relations and must surely offer some degree of optimism that a deal might be reached.
Even at this late stage, and despite posturing aimed at respective domestic audiences, there is common ground in public statements by Gibraltar, the UK and Spain.
Last week José Manuel Albares, Spain’s Foreign Minister, told Campo mayors he was “confident and hopeful” the negotiation would conclude “in a satisfactory agreement as soon as possible”.
Chief Minister Fabian Picardo told Parliament that same day that “we are all on the same page in this objective” and that he was “convinced we can achieve this”.
A UK Government spokesman told me negotiators were “working intensively”, adding “we are confident that with flexibility on all sides” a deal can be reached.
Journalists tend to focus on what separates rather than unites. That is a reasonable and fair approach in most situations, but it runs into two problems with this negotiation.
Firstly, the talks are hermetically sealed, another sign that the parties are genuine in their efforts to reach agreement. Negotiating in public is a sure-fire way to scuttle progress.
In practice, it means that what we read in the papers, particularly in Spain, is often based on speculation potentially fuelled by partisan interests that might prefer no deal for whatever reason.
We’ll see more of that in the coming days and weeks, and it’s probably wise to apply a healthy dose of scepticism to anything we hear or read.
The other problem with focusing on negatives is that it’s easy to miss nuances that point at a shared landing space.
Take, for example, public comments last week relating to immigration controls, perhaps the thorniest issue yet to be resolved.
From the outset, Gibraltar and the UK made clear they will not countenance Spanish boots on the ground. Conversely, Spain and the EU made clear that if Gibraltar’s airport and port are to become external borders of the Schengen area, there must be oversight by the EU and this must be provided by Spain as the neighbouring Schengen state.
The two positions seem incompatible, but the New Year’s Eve framework proposed a solution for this, at least for the first four years of any agreement.
Spain’s role in that EU oversight, flagged recently by the Ministry for Foreign Affairs in Madrid and in multiple press reports, has rattled many people here, but is in fact nothing new.
Back in December 31, 2020, just hours after Mr Picardo and the then Spanish Foreign Minister, Arancha Gonzalez Laya, announced the political framework agreement, the Chronicle published the first of what now feels like an endless stream of stories about this process.
Quoting the two politicians, we described how the agreement envisaged an end to immigration checks at the land border, with Schengen controls instead being conducted at the port and airport “with the assistance” of officers from Frontex, the European borders and coastguard agency.
As the Schengen member neighbouring Gibraltar, Mrs Gonzalez Laya said Spain would be "the guarantor" of those checks to other Schengen countries.
Mr Picardo was even clearer.
"Under the agreement between the United Kingdom and the European Union,” he told reporters at the time, “Schengen's closest member state will be the one that will be taking responsibility for what happens here as regards the European Union under the treaty."
Neither of them explained how that would work in practice though. Just hours before the end of 2020, our article that night added this line: “Details of those practical arrangements have yet to be finalised.”
That issue has dominated the negotiation since.
In April this year, Julian Braithwaite, the Director for Europe at the Foreign, Commonwealth and Development Office, told a House of Commons committee that “the nub” of the remaining disagreement between the UK and the EU centred on mobility “…and particularly implementing the agreement between us and the Spanish about how Schengen would work, and the degree to which Spanish officials would be involved in that and how it would be managed in a way that was seamless.”
And last week, as Spain’s Ministry for Foreign Affairs set out its goals in a statement that made no mention of Frontex, Madrid made clear any agreement on mobility required that Spain controlled Gibraltar’s external EU frontiers “on Schengen’s behalf”.
To do that, it would have to “…exercise certain functions and competencies necessary to protect the integrity and security of the Schengen space.”
Likewise with any agreement on customs arrangements, where Spain “in the EU’s name” would have to “exercise functions to control and protect” the internal EU market.
Mr Picardo, in Parliament, reiterated “there is no question” that only Gibraltar would control Gibraltar’s frontiers.
But he added too that Gibraltar was not seeking to control the Schengen frontier.
“The Schengen parties would not concede that anybody should have control over the Schengen frontier other than a Schengen high contracting party or an emanation of the European Union,” he said.
At first blush it looks like a deal breaker, but in reality Mr Picardo and Mr Albares were reflecting the premise first laid out on December 31, 2020.
If there is a deal, Spain will have a say at the port and airport over who is allowed into the Schengen zone having first passed Gibraltar’s immigration points.
But that is a role that Spain will conduct as the guarantor for the other members of the Schengen accord. It will be doing so with its Schengen hat on, not in the exercise of its age-old aspirations over the Rock, and only after we pass laws allowing them to do so.
That will be the price of guaranteeing not just frontier fluidity vital to our economy, but to gain the right too to move freely around the 27 member states and unlock economic opportunity.
There are other tricky areas too, no doubt, but nearly two years on, finding a practical solution to that EU oversight challenge, one that respects Gibraltar and Spain’s entrenched red lines on sovereignty, still appears to be one of the key sticking points.
As they meet in London this week, the negotiators should reflect on the history of this process and the spirit of generosity and compromise that initiated it against the backdrop of the difficult lockdown period.
At its core, the aim of the framework agreement was to lay the foundations for a treaty that protects the interests of people who simply want stability and normality to go about their lives after a Brexit vote that few here supported.
Last Friday, Madrid said the latest EU proposal offered “very reasonable technical and practical solutions” opening the way for “an area of shared prosperity respectful of our respective legal positions”. Spain knows which lines we will not cross.
Mr Picardo said the latest UK proposal allowed for the same end and for a successful conclusion of the negotiation “with all sides’ relevant, long-standing positions being preserved”. But Gibraltar and the UK understand too that Spain has EU obligations it cannot ignore.
It may be that, in signalling optimism and willingness, each side is preparing the narrative for failure, setting the scene to be able to say, “we tried, but…”.
Then again, all sides are still at the negotiating table, and there is every reason to keep going.
Agreement on this deal could reset the relationship between Gibraltar, Spain and the EU, placing it on a more positive, constructive footing at a time when wider UK/EU relations could do with some good news.
That prize is worth fighting for, even as a ‘no deal’ cliff-edge that no one wants looms ever closer.