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Schengen deal ‘would not mean ceding control’, Picardo says

Brian Reyes

Gibraltar and the UK will not be ceding any control of the Rock’s borders in reaching an agreement with Spain and the EU to enable Gibraltar’s inclusion within the Schengen area, Chief Minister Fabian Picardo has told the Chronicle.

While the New Year’s Eve framework agreement envisages Spain taking responsibility for who can access the Schengen area through Gibraltar’s airport and port, Mr Picardo said this can only be possible because the UK and Gibraltar accept Madrid having that role.

“We are agreeing to create a double filter at the airport and port in exchange for the suppression of controls at the land frontier,” the Chief Minister said.

“But we are in control of that decision and we would be in control of the decision to undo this double filter system because we retain control of the right to undo the arrangements.”

“I am clear that we have not ceded on sovereignty, jurisdiction and control and, to be fair to Spain, they have specifically said that they were not seeking advances or concessions in respect of those.”

Mr Picardo was speaking after a copy of the framework agreement was leaked to El Pais earlier this week, providing the first details of what the UK, Gibraltar and Spain had agreed after months of negotiation.

The agreement sets out the broad parameters that will be used in the coming weeks and months to negotiate a binding treaty between the UK and the EU on matters relating to Gibraltar including mobility across the border for people and, potentially, goods.

It makes clear from the outset that the agreement is without prejudice to the UK and Spain’s long-standing positions on sovereignty.

In the interview, Mr Picardo offered further insight into the practical arrangements that will underpin the proposed Schengen arrangements, and what might happen after the initial four-year implementation period ends.

He also reflected on his government’s thoughts on whether a bespoke customs deal was also possible for Gibraltar as part of the deal – the jury is still out on this - and what that might mean in practice.

And he said ultimately, if a treaty was agreed, it would be Gibraltar’s Parliament that would have to enact legislation in order to bring its contents into practical effect.

“It is a recognition that in the territorial extent of what we call Gibraltar, any actions to be carried out by Frontex, any mechanisms through which a person will be required to pass, can only be compelled by an Act of the Parliament which governs our nation,” he said.

“It is that essential. And in that respect, what we have is an assertion of our sovereignty, our jurisdiction and our control in the most direct, most obvious and most undeniable manner.”

Mr Picardo, who tonight will answer questions from the public on the agreement during a live GBC Viewpoint programme, dismissed too any suggestion that a treaty would drive Gibraltar away from the UK and closer to Spain.

He said that after four years of intense political upheaval after the 2016 Brexit vote, Gibraltar was now “closer than ever” to the UK.

“We are British in our hearts and minds and in every fibre of our being,” he said.

“And I think that intellectually, Spain has started to realise that.”

“That is why I don’t believe in telling Spain that by doing this arrangement she may make a Spanish Gibraltar a more likely reality in the future.”

“Nothing will make a Spanish Gibraltar a reality in the future.”

“But that does not mean we should not be working together to make our respective citizens’ rights better, more prosperous and more secure.”

“Having secured the fundamentals, that is our job as politicians.”

The Chief Minister cautioned too that despite the progress made by the three governments to reach the New Year’s Eve agreement, there was still a long way to go.

The UK, with Gibraltar alongside, now has six months to negotiate the text of the treaty with Spain and the EU.

“There may not be a treaty in the end,” Mr Picardo said.

“We may fail to find agreement.”

“But we are closer now than when we started to talk to Spain after the referendum and closer than when I first suggested a ‘Schengen style, differentiated solution’ for Gibraltar.”

“We have now secured UK and Spanish agreement to this potential formula.”

“I will keep going to try to achieve it in a safe, enduring and deliverable way that is acceptable to all parties, which is the only way it will fly.”

Below is the full text of the interview with the Chief Minister, which was conducted virtually on Wednesday.

Q: The agreement states explicitly that it is without prejudice to each side’s well-known positions on sovereignty and jurisdiction. There is no mention of control. Given that Spain will be responsible for ensuring the correct application of Schengen rules in Gibraltar, haven’t we in effect ceded an element of control over our borders? And if so, why does the government think this is a price worth paying?

CM: The language of ‘sovereignty and jurisdiction’ is the one you see in all agreements. ‘Control’ was added by Sir Peter in his correct analysis of what we have to guard against ceding. We have not, however, ceded control of access to Schengen, because it was never ours to cede. The argument can also be run that Spain has lost control of the circa 30 million checks they would be doing a year if the Schengen entry point were at the land frontier and not at the sea and air frontier.

Q: But even if control of access to Schengen was never ours to cede because we were never part of that agreement, we will, in effect, be ceding a degree of control on our borders as the price of inclusion into the Schengen area. Is that not the case? What is the price we’re paying for this deal if not?

CM: We are agreeing to create a double filter at the airport and port in exchange for the suppression of controls at the land frontier. But we are in control of that decision and we would be in control of the decision to undo this double filter system because we retain control of the right to undo the arrangements. I am clear that we have not ceded on sovereignty, jurisdiction and control and, to be fair to Spain, they have specifically said that they were not seeking advances or concessions in respect of those.

Q: What is the purpose of the ‘Schengen shack’ and how will it work in practice? Where will it be located and what will happen inside?

CM: A small new office facility will be built in both Gibraltar and Spain, adjacent to the airport building, on the waste ground by the bottom of ‘the Loop’. The building will extend a few metres into Spain and the same number of metres into Gibraltar. It will be a working area for Gibraltar and Spanish officials, and Frontex personnel to work on any additional Schengen checks exceptionally required after the primary passport checks have been carried by Frontex or the BCA. Gibraltar law enforcement officials and the relevant Frontex officials will escort those affected to this facility for those further checks and questioning.

Q: Which Gibraltar and Spanish officials, and what will they be doing there, apart from any secondary Schengen checks required?

CM: For Gibraltar, the RGP and the BCA will be the ones who will be relevant. For Spain, it will be a matter for them to decide who will be the representatives of the Foreign Ministry or the Ministry of the Interior who will be involved in manning the Schengen Information System.

Q: The agreement speaks of cumulative, dual controls: BCA has the initial say on who can enter Gibraltar, but ultimately it will be the Schengen authorities – in this case, Spain as guarantor of the application of Schengen rules – who will have the final say on who can enter Schengen via Gibraltar. Isn’t that, in practical effects, Spain having a final say on who can enter Gibraltar?

CM: That is not the case. This is subject to the views of the EU Commission and the negotiation of the treaty but there are already provisions in Schengen regulations for the grant of specific entry permissions just for one Schengen area, in this case, Gibraltar. But let’s be clear, nothing changes: Only Spain applying the Schengen Information System checks will be able to make the final decision on who enters Schengen, as they do at the frontier today. Only Gibraltar, using our own data basis and criteria, will be able to make the final decision on who enters Gibraltar, as we do at all the entry points today.

Q: What happens if someone is cleared by BCA but refused entry at the Schengen control?

CM: The details of such circumstances have to be finalised in the treaty to be negotiated. I do not think that will happen in many or any instances. If it does, and such a person wishes to only access Gibraltar, and the BCA believe that there is good reason for them to be granted Gibraltar-only access, it is possible under the current Schengen arrangements to grant such Gibraltar-only permission to enter on exceptional grounds in the national interest, on humanitarian grounds or for reasons of international obligation.

Q: The agreement says there “could” be a bespoke customs arrangement for Gibraltar. Is it possible to have the benefits of the Rock becoming part of Schengen without such a customs agreement? In the absence of a customs agreement, would we still have customs checks and with what implications for a free-flowing, immigration-less border?

CM: It is possible to do a Schengen immigration deal and not do a customs agreement. We are certain we want to do the first if we can, but there is a lot to do before we know we want to do the second. I have set up a Treaty Liaison and Advisory Committee including our business organisations in order to really knuckle down on these possibilities with our industry leaders and our union leaders. Depending on what customs agreement we do or don’t do, there could in future be no customs checks, less customs checks than today, the same customs checks as today, or more customs checks than today. Those are the options.

Q: Is Spain really open to doing an immigration deal without a customs deal alongside it?

CM: This is what the framework specifically provides for. Paragraph 5, on immigration/Schengen, talks about what ‘will’ be in the treaty, if there is one, and paragraph 11, on a goods/customs relationship, talks about what ‘could’ be in the treaty.

Q: What are the implications for Gibraltar of a bespoke customs agreement? The framework document talks of avoiding distortions of the internal market and highlights ‘sensitive’ products such as tobacco, fuel. It also mentions VAT. Explain what this would mean for Gibraltar.

CM: There are too many possible permutations to be able to set out all the options here, but the Gibraltar economy has changed a lot over the past 20 years. Because I have put tobacco prices up every year since I was elected, our tobacco prices are already in the top two thirds of the table of tobacco prices inside the EU Customs Union. So we can see options to discuss with businesses here for access to a larger market. And remember we don’t have visible VAT on goods, but we do have import duties which are not separately visible on the retail price. But we may find non-VAT options are also possible. For consumers, we see benefits of cheaper products, not more expensive products. For wholesalers and retailers, we see benefits from retaining wholesale bonded, duty-free trade, a duty-free trade at the port and airport and a separate, duty-paid retail trade to customers in Gibraltar who will not have restrictions in exporting through the land frontier, as well as easier internet sales to the European continent, potentially our largest export market. But there are issues also. These things require the detailed analysis we are undertaking with our business community.

Q: On law enforcement cooperation, how will the three governments address the obvious issues that arise when it comes to British Gibraltar territorial waters?

CM: The fact that there is once again an express reference to the three governments is important progress in a ‘Back to the Future’ sort of way. We are looking once again at direct arrangements between us. Matters related to waters have not yet been finalised, but I want to be clear, we will not agree to anything that compromises our exclusive sovereignty, jurisdiction or control over BGTW. Everyone at the table understands that. At the same time, I want to see cooperation progress as it has already between the RGP and Spanish law enforcement to curtail the drug traffickers.

Q: I don’t understand your ‘Back to the Future’ reference.

CM: I mean it in the sense that Sir Peter Caruana’s GSD had already achieved the agreement of a trilateral formula. We have not broken new ground there. We have built on what the GSD achieved.

Q: You’ve said that none of this can happen without the UK’s permission and that Gibraltar’s parliament must legislate in order to give effect to the agreement. What is the significance of this?

CM: This is fundamental. It is a recognition that, in the territorial extent of what we call Gibraltar, any actions to be carried out by Frontex, any mechanisms through which a person will be required to pass, can only be compelled by an Act of the Parliament which governs our nation. It is that essential. And in that respect, what we have is an assertion of our sovereignty, our jurisdiction and our control in the most direct, most obvious and most undeniable manner. And of course, subject to our international obligations being complied with, an Act of Parliament can be amended or repealed at any time by the Parliament itself.

Q: You have stressed on several occasions that the agreement can be terminated by the UK at any point. That means Spain can also terminate it. What certainty do we have, then, that any treaty will survive a change of government in Spain?

CM: I want this to be a treaty that endures. I would wish to see wholesale support in Gibraltar for it once it is in an agreeable form. But let’s be clear, the treaty will be between the UK and the EU. They will be the high contracting parties. We will have a concordat with the UK relating to our rights to invoke termination, which we have not yet set down in writing, but we already agreed a similar concordat in respect of the Withdrawal Agreement. We have yet to agree the terms of the termination provisions. I will only be able to assess the powers of any individual Member State of the EU to terminate the treaty once it is in final form.

Q: After the implementation period, all sides will have a veto as to what happens thereafter in respect of the role undertaken by Frontex during the initial four years. It’s clear that at that point, Gibraltar and Spain will likely want different things. Doesn’t this just kick the can four years down the road? What would you expect to happen in those four years that might change perspectives in Spain, or here?

CM: I really do believe that Spain underestimates how lasting Franco’s legacy is to our ability to trust Spain institutionally. The frontier closure is an indelible wound. We associate the institutions of Spanish law enforcement with that, with border queues, with incursions. For that reason, I really hope we will be able to see the Frontex role endure, as that is what will give real longevity to these arrangements. If there is an insistence that we have to accept Frontex leaving and Spanish law enforcement in Gibraltar at the airport terminal and at the port, then I will not recommend continuation to our people. At that time, Gibraltar will have to be economically strong and financially robust and ready to be able to go through a hard Brexit then, as we were now. That is the reality.

Q: Some observers in Spain have said that this treaty, should it materialise, will bring Gibraltar closer to Spain than ever before. Are they right? Is that something that people here should worry about? I hesitate to use the word osmosis, but…

CM: Gibraltar will now be closer than ever to the UK. We have our deal on passporting services into the UK, which is where we do over 90% of our business. We have access via the UK to trade deals around the world. We have our centre of educational, legal and social interest in the UK. We are receiving our life-saving Covid vaccine from the UK and we have secured a sovereign guarantee from the UK for our Covid borrowing. Our children hardly speak Spanish, something we must address as it is politically, socially and commercially important for us to be bilingual. The fact that we will be able to more easily holiday and shop in Spain, Portugal or the rest of the EU is not going to change that any more than the restrictions and the attempted economic strangulation changed that. Neither the carrot nor the stick will ever prise us from Britain’s side. We are British in our hearts and minds and in every fibre of our being. And I think that intellectually, Spain has started to realise that. That is why I don’t believe in telling Spain that by doing this arrangement she may make a Spanish Gibraltar a more likely reality in the future. Nothing will make a Spanish Gibraltar a reality in the future. But that does not mean we should not be working together to make our respective citizens’ rights better, more prosperous and more secure. Having secured the fundamentals, that is our job as politicians.

Q: From all of your responses, it is clear that we are a long way from a final treaty. Is that a fair assessment? And given the negative reaction to the framework agreement from opposition parties in Spain, how confident are you that a treaty acceptable to all sides – including the other 26 EU states - is possible in six months?

CM: We are a long way from a final treaty. The EU has to consider this proposal and negotiate it with us. There may not be a treaty in the end. We may fail to find agreement. But we are closer now than when we started to talk to Spain after the referendum and closer than when I first suggested a ‘Schengen style, differentiated solution’ for Gibraltar. We have now secured UK and Spanish agreement to this potential formula. I will keep going to try to achieve it in a safe, enduring and deliverable way that is acceptable to all parties, which is the only way it will fly.

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