Parliament debates historic legislation that ‘tames Brexit’

The Gibraltar Parliament debated a Bill on Monday that “tames Brexit” by giving effect in domestic legislation to the UK/EU treaty on Gibraltar.

The final stage of the Bill will be taken on Tuesday and, once approved, will ensure Gibraltar is ready to enable provisional implementation of the treaty once it is signed by the UK and the EU.

The Opposition signalled it would support the legislation, despite some concerns about aspects of the mechanisms used in its drafting.

The Bill was certified as urgent by Chief Minister Fabian Picardo, who told Parliament that full implementation of the EU’s Entry/Exit System on April 10 meant Gibraltar had to be ready by that date.

Even so, he again signalled that the target date for provisional implementation of the treaty will almost certainly be missed because the EU’s internal processes were not yet complete.

Mr Picardo nonetheless signalled some progress on that front and said EU member states’ ambassadors on the Permanent Representatives Committee, known as COREPER, were due to report on Wednesday, the final step before the agreement moves to the European Council for formal adoption.

“It is likely we will then receive a clearer statement of when the EU believes that the treaty can be signed by the EU side and what that means in terms of provisional implementation date, which could still be before the 10th or in time for the 10th of April, although that appears very, very unlikely indeed,” Mr Picardo told Parliament.

“That could mean a delay of weeks or months subject to the relevant procedures on the EU side.”

Irrespective of the likely delay beyond April 10, Mr Picardo said the UK and Gibraltar side “will nonetheless be ready on time”, both in terms of legislative framework and temporary infrastructure allowing for Schengen controls at the airport.

“We’re working every hour that is available and we’re leaving no stone unturned in order to be ready by the 10th of April, even if eventually it becomes likely that our treaty partners will not be ready,” Mr Picardo added.

“We’re exhausting ourselves, as people would expect us to do in the defence and representation of Gibraltar and its people.”

The Chief Minister praised the team that drafted the Bill, even while acknowledging that it “is not perfect” and may have to be amended in future.

“But it is the Bill that will enable us to be ready to avoid the worst effects of the introduction of the EES at the frontier,” he told Parliament.

“It is robust and it is effective and it does what it says on the tin of the explanatory memorandum.”

“Given the challenges that we are facing, I will settle for that, as would most of the people of Gibraltar.”

SPANISH TRIGGER

Responding to Opposition Leader Keith Azopardi during a debate lasting over four hours, Mr Picardo said the Gibraltar Government did not yet have the final version of the concordat with the UK, which will include a commitment that Gibraltar can ask London to terminate the treaty in future if need be.

While the document is well advanced, the crisis in the Middle East has meant it has not been possible to have “the final engagement” with UK ministers to conclude the negotiation.

The issue is important because when Parliament passed a motion earlier this month calling on the UK to enter into the treaty on Gibraltar’s behalf, it was conditional on the concordat first being agreed.

In a related development, the Chief Minister also revealed that the European Commission’s jurist linguists had required a change to a clause in which Spain was given the right to ask the EU to terminate the treaty on its request.

That clause “… caused angst in people [in Gibraltar] because people felt that Spain would therefore simply have the trigger in her hand,” Mr Picardo said.

“The legal conclusion of the Commission and the Council is that that cannot stand because of EU law and this being an EU-only agreement.”

“As it's an EU-only agreement, there cannot be the primacy that Spain was arguing for.”

The amended clause now requires the EU to take “the necessary steps in accordance with its internal procedures” should it receive a request from Spain to terminate the agreement.

“That means that qualified majority voting applies and that a qualified majority of the member states have to vote in favour of termination,” Mr Picardo said.

“So that trigger is no longer in Spain's hand and that is a welcome development [and] in keeping with the view we had taken as to how qualified majority voting would have to apply, whatever the clause said.”

HISTORIC LEGISLATION

The draft legislation debated on Monday runs to 110 pages and was described by Mr Picardo as being of “generational significance”.

Mr Picardo said the Bill provided the legislative answer to the disruption caused by Brexit, adding that it would deliver legal certainty, economic opportunity, mobility, stronger security cooperation and a foundation for future stability.

“This is the Bill that tames Brexit,” he said.

“This is the Bill that tears down the frontier.”

“This is the Bill that secures our British way of life for generations to come.”

He reminded Parliament that Gibraltar had been forced out of the EU despite 96% of the population voting for Remain and rejecting “the fraud that Brexit was”, adding that the legislation would help restore a workable relationship with the EU consistent with that choice.

At the heart of it all was a focus on people and human interaction across the border, including “of the sort that we sometimes don't often spend long enough thinking about”.

To hammer home that point and underline the importance of border fluidity, he told Parliament that on Monday last week, 39,965 people crossed into Gibraltar, including children and families who lived on one side but had schooling, sporting and other social activities on the other.

Mr Picardo said the legislation would enable Gibraltar to deliver commitments in areas including the circulation of persons, customs, aviation, frontier workers, police cooperation and dispute resolution.

It would also enable EU law provisions required by the treaty to operate domestically where necessary, and create the structures for the Cooperation Council, specialised committees and other mechanisms envisaged under the agreement.

Mr Picardo said the legislation had been deliberately drafted in a way that linked individual provisions to specific treaty articles, enabling people to see clearly how each part of the law gave effect to each part of the treaty.

As he has done before, Mr Picardo told Parliament nothing in either the Bill or the treaty altered Gibraltar’s British sovereignty.

He said that if sovereignty had been compromised, the treaty would not have secured unanimous support in Parliament.

“Indeed, I would go further and add that the very essence of these arrangements rests on the opposite of a sovereignty concession,” the Chief Minister said.

“In fact, it rests on the exercise of British sovereignty through the instrument of the very legislation that this Parliament is considering now.”

Mr Picardo said the legislation provided the “foundation for prosperity, jobs and investment in the future”, avoiding barriers “that would otherwise harm businesses and families”.

The legislation and the treaty would remove border checks historically “abused” by Spain as “a stranglehold” on Gibraltar’s economy.

“Checks that cause stress to the people of Gibraltar and to those who live around us,” he added.

“Stress in the form of major traffic issues, the delays in reaching work or medical appointments, or even the damage to our tourism product because the queues made coming to our beautiful home unappealing.”

“And principally, stress to human relations, to family relationships.”

“Politics using immigration checks to get in the way of people’s lives instead of making them easier and safer.”

“Those days can be a thing of the past [and] this Bill is the mechanism to deliver that from the Gibraltar side of the isthmus.”

OVERSIGHT

Mr Picardo said the Bill mandates annual reports on implementation to be laid in Parliament. Any secondary legislation done in relation to treaty implementation will also have to be laid in Parliament.

That meant Parliament retained “full democratic oversight” of the legislation and the treaty implementation, the Chief Minister.

On this point, however, there was some disagreement with the Opposition despite its backing for the Bill.

The Leader of the Opposition said parts of the legislation risked weakening parliamentary scrutiny and cutting across Gibraltar’s constitutional framework.

While much of the Bill simply reflected what had already been agreed in the treaty, Mr Azopardi said other sections involved policy choices by the Gibraltar Government about how powers would be exercised in future, particularly through regulations, adding those choices should be revisited.

His central concern was that ministers were being given very wide powers to make law by regulation, including powers that in practice would reduce debate in Parliament.

“The Chief Minister said that this [legislation] guarantees oversight,” Mr Azopardi said.

“We don't agree.”

“We think that there are aspects of this Bill that undermine scrutiny and oversight and it could be done in a different way.”

This mattered because the treaty was not a static document and created structures such as the Cooperation Council and specialised committees that could shape future rights, laws and obligations, he told the House.

Gibraltar needed to retain the key decision-making powers over how the treaty evolved and how any future changes were handled, he added.

Mr Azopardi argued that the Bill’s drafting appeared to define “enactment” broadly enough to include the Constitution, raising concern that powers to amend, vary, suspend or repeal enactments by regulation could be read as extending into constitutional territory.

Even if such a move would ultimately have no legal effect if challenged, the point was that Parliament should not pass legislation framed in that way, he said.

“Our Constitution is not just about the mechanics of governance,” Mr Azopardi told Parliament.

“It includes, of course, the fundamental rights of people and indeed references to the things that we hold dear, like our preamble on sovereignty and the references to self-determination and so on.”

He urged the Government to consider adding a line to make explicitly clear that no powers for secondary legislation contained in the Bill be used to amend the Constitution.

Mr Azopardi contrasted the Bill with the old European Communities Act 1972, arguing that when Gibraltar entered the EU there had been explicit safeguards to ensure the Constitution was not overridden.

That history should guide the House now too, especially because Gibraltar was not joining the EU but entering into an agreement with it, Mr Azopardi said.

Replying later in the debate, the Chief Minister said Mr Azopardi’s analysis was “theoretical beyond theory” and any government that tried to change the Constitution through secondary legislation would fail at the first challenge.

But while he said the Government believed it unnecessary to make the change suggested by Mr Azopardi, it would do so in any event.

“There is absolutely no need to do this from the point of view of the Government, but there is absolutely nothing lost,” Mr Picardo said.

Mr Azopardi had also suggested a “sunset provision” on powers to make secondary legislation related to the treaty implementation, acknowledging the need for pragmatism in allowing urgent regulations to be made in time for provisional application, but insisting this should be followed by a return to a system in which regulations would need parliamentary approval before coming into force.

But Mr Picardo replied the Bill already circumscribed those powers by making clear they could only be used for the purpose of implementation of the treaty, adding that regulations would be laid in Parliament as would a yearly review of the implementation process.

Despite the legal and constitutional criticisms, Mr Azopardi made clear the Opposition would support the Bill, even while stressing that support should not be read as endorsement of every part of either the treaty or the legislation designed to implement it.

He said the agreement remained, in his view, imperfect and potentially carried risks for Gibraltar over time, particularly given provisions on suspension and termination.

But faced with the “abyss of no deal”, the Opposition had taken what he described as “a leap of faith” in backing the earlier treaty motion, and this same calculation now underpinned its support for the Bill.

GSD MP Roy Clinton asked for clarification on how the Bill’s funding provisions would operate in practice, with Mr Picardo replying there would be a line for treaty spending in the Budget estimates book.

GSD MP Joelle Ladislaus sought clarification on how parts of the legislation would work in practice, particularly in relation to police cooperation, excise provisions and the supply of medical devices.

She expressed concern that Gibraltar was “hurtling towards implementation” before regulations had been published setting out the powers to be given to law enforcement officers and the framework within which they would operate.

Mr Picardo said the regulations would be published “in good time for implementation” and that all the relevant public authorities would have time to familiarise themselves with the regulations, “which they will very likely have a hand in drafting, as they are already having a hand in drafting”.

GSD MP Damon Bossino said he would support the Bill but cautioned that it handed wide powers to the Gibraltar Government.

Mr Bossino told Parliament the Opposition understood the practical need to ensure Gibraltar was ready for possible provisional arrangements linked to the April 10 deadline, and said it supported the Government in making sure there could be no criticism of Gibraltar’s preparedness.

But he argued that the Bill had not received the level of scrutiny such an important measure deserved and echoed Mr Azopardi’s view that some of the powers being granted to ministers should be limited in time.

He said the legislation would reintroduce aspects of EU law into Gibraltar’s domestic system and allow future decisions of treaty bodies to have effect in Gibraltar law, which he described as a significant encroachment on legislative sovereignty.

Conversely, Mr Bossino highlighted provisions he said confirmed Gibraltar would retain important powers, including control over joint operations in Gibraltar and the ability to regulate the conduct of Spanish law enforcement authorities operating inside Gibraltar in other circumstances such as hot pursuit.