Political noise over Gibraltar hides a complex, nuanced reality

Between now and Sunday, the UK and the EU will almost certainly agree a form of words that will assuage Spain’s bruised pride over Gibraltar and the Withdrawal Agreement.

Spain is upset that the draft divorce deal, negotiated over the past year by UK and EU officials and due to be rubber-stamped by the European Council at a meeting tomorrow, includes language that leaves open the possibility of Gibraltar’s automatic inclusion within any future relationship agreed by London and the EU after Brexit.

Spain insists it must have the deciding voice on whether the future relationship applies to Gibraltar too. It wants a veto over this next phase of the Brexit process, in the same way as it was granted the infamous Clause 24 for the talks on withdrawal and transition.

On its own, Spain cannot block adoption of the Withdrawal Agreement tomorrow, which will be done through a process of qualified majority voting.

But the EU wants to maintain consensus amongst its members ahead of complex talks on the shape of the future relationship, not least because the outcome of those negotiations will, once completed, need the unanimous backing of all EU states if it is to be adopted.

In other words, if Spain is not appeased now, the already difficult process ahead could be destined to fail even before it starts.

The sop to Spain will likely come in the shape of a statement or declaration separate to the Withdrawal Agreement and the accompanying political declaration on the future relationship. There were rumblings to that effect as this edition went to press yesterday.

The UK and the EU will seek to satisfy Spain without revising the draft agreement itself, which would be to open Pandora’s Box.

And the pressure is on. Yesterday, the minority Socialist Government of Prime Minister Pedro Sanchez was mauled by the Spanish press over its failure to secure the Spanish position on Gibraltar in the Withdrawal Agreement.

That perception of weakness played into the hands of the Socialists’ political opponents, not least the Partido Popular, which has hardened its stance on Gibraltar under the leadership of Pablo Casado and was sharply critical of Mr Sanchez yesterday.

With Spain heading into regional elections in Andalucia next month – followed by municipal, European and, possibly, national elections next year – Mr Sanchez will not back down on his Gibraltar stance and will require succour.

If and when he gets it, we should pause for thought before exploding in outrage. Spain will sell this as a victory, but the reality is far more complex and nuanced.

Much of what is happening at the moment is political noise for domestic consumption and, in the coming days and weeks, we will hear a lot more about Gibraltar and Brexit, and there will be contradictory interpretations depending on which side of the border fence you are on.

As we reported yesterday, we saw some of this already this week when Spain’s state secretary for European affairs, Marco Aguiriano, claimed the Gibraltar Protocol would give Spain a voice in the application of certain EU laws in Gibraltar. It does no such thing.

Likewise Mr Aguiriano insisted Spain had negotiated the Gibraltar elements of the Withdrawal Agreement bilaterally with London, even while acknowledging meetings with the “top tier” of the Gibraltar Government.

In fact, Gibraltar has been involved in these talks from the outset, both trilaterally with the UK and Spanish delegations and, against all odds, even bilaterally with the Spanish Government, both under the Partido Popular and the PSOE. Madrid can interpret those discrete negotiations whichever way it wants, but it was three-way dialogue that got us to where we are.

Underlying all of this is the inescapable reality of the UK’s legally-binding constitutional relationship with Gibraltar. In the areas that are covered by the protocol and the associated memorandums of understanding on practical cooperation, competence lies with the Gibraltar Government under the 2006 Constitution. Nothing is going to be foisted on us against our will. If we do not agree, then there is no deal.

The Gibraltar Protocol also states explicitly that it is without prejudice to each side’s core position on sovereignty. “Nothing in these documents compromises any of our red lines,” Mr Picardo said in Parliament this week. “Nothing in them alters in any way whatsoever our Constitution and constitutional competences. There are and there will be no concessions on matters of sovereignty, jurisdiction or control.”

One would be hard pushed to imagine any Gibraltarian politician, let alone one from the GSLP or the Liberal Party, saying anything less.

Whatever happens this weekend could, in any event, be academic, given the turmoil in UK politics. Even if the European Council rubber stamps the Withdrawal Agreement on Sunday, Prime Minister Theresa May still has to get it through the House of Commons. That is a big hurdle she may not be able to overcome.

This week the spotlight was on Gibraltar, but the reality is that we are a bit player in a far bigger tussle, the outcome of which will have far-reaching consequences for generations to come.
In that fractured landscape, we can only do what is within our gift to influence our own little corner of Brexit as best we can.

Two years ago, the risk was we would be left out of the transitional arrangements that will, assuming the divorce deal survives, cushion the blow of departure. When Spain was granted the Clause 24 veto, the voices of doom said the writing was on the wall for Gibraltar. Yet here we are.

In parallel, we have negotiated bilaterally with the UK to ensure continued access into the UK market after withdrawal, whatever shape it takes. That has helped retain business confidence in Gibraltar, despite the turmoil and uncertainty surrounding us.

Now, the clear message from those who have negotiated on our behalf is that the Withdrawal Agreement will be good not just for Gibraltar, but for the surrounding Campo de Gibraltar too. Time will tell.

It is a cliché and it has been said on countless occasions, but the devil will be in the detail once the full package of documents is published. As the GSD Opposition pointed out this week, only then will this community be able to fully assess and analyse what has been achieved, or otherwise.

Until then, it is probably wise to hold our nerve and not rise unnecessarily to those who would bait us.

And let us not forget the inescapable geographical fact that Spain is our neighbour and that, underpinning these months of intense effort and negotiation, is a desire to maintain normal relations with communities on the other side of the border, and to build on those for our mutual benefit.