The die is cast

By Maurice Xiberras

Of the five MPs, who intervened on Gibraltar’s behalf in the Second reading of the fateful European Union (Notification of Withdrawal) Bill, all their interventions being but passing references - Mr Mike Gapes was the only one able to squeeze in a comment on Gibraltar at the Committee stage, though he was not even able to make a speech in support of his relevant amendment.
For his part, the Minister for Exiting, Robin Walker, considered Mr Gapes’s amendment unnecessary, since the Government was already taking account of the interests of Gibraltar, the Crown dependencies and the overseas territories, Mr Walker assured Mr Gapes (and Gibraltar). “I assure him that we are doing exactly that,” adding that he had met the members of the Joint Ministerial Council for the overseas territories that morning to take their views on board in this process.”
Mr Gapes asked whether it was not the case that ‘we’ needed more than a personal consultation with the Minister? Mr Walker replied that Gibraltar’s voice was well heard in Parliament rattling off the many occasions, on which our Chief Minister had represented the interests of Gibraltar, a fact covered assiduously by the Chronicle and other media in Gibraltar.
But these exchanges on the floor of the House were minimal, and missed the substantial point: would UK Government negotiators put Gibraltar’s special circumstances to EU negotiators, when the time comes?
It was clear that Mr Walker was avoiding the question that Mike Gapes did not put to him, because the answer was nugatory – it had already been given. The question is whether Gibraltar’s special circumstances will be part of Theresa May’s negotiating brief?
DIE WAS CAST IN MADRID
Although there is time to go, I fear that by agreement with Prime Minister Rajoy, Theresa May already excluded the only British territory with a land frontier with the EU, besides Northern Ireland, from her own negotiating brief, from the negotiations, and therefore from any Brexit Treaty that may be signed at the end of the negotiations.
Indeed, a week after the PM’s “excellent” Lansdowne House speech to assembled ambassadors, Robin Walker appeared to me to confirm the message, which his boss, the Rt. Hon. David Davies, had conveyed to the Commons’ Select Committee the day after our CM’s appearance before it: no ‘differentiated’ settlement would be proposed for Gibraltar in the negotiations with the EU. Robin Walker told the Lords’ Committee that the Government would seek “pragmatic solutions to ensure fluidity at the border between Gibraltar and Spain.” “Pragmatic” to me sounds like solutions in no way the subject of an agreement with the EU, but ‘on the side’, between the UK and Spain, and in no way endorsed by the EU, in the same way as Britain appears to be seeking a solution to the issues arising on the Irish border.
It seems clear to me therefore that the die was cast months before the momentous debate in Parliament - at that meeting in Madrid on 19th October 2016. The deal between the two sovereign Governments was that Spain would not press her sovereignty claim in the Brexit context, but that in exchange the UK would deal with Gibraltar issues bilaterally. British sovereignty was safe for a period, but the EU protection Gibraltar still enjoys by the EU acquis will be a thing of the past. Instead, Gibraltar will have to rely on whatever agreement the UK and Spain reach bilaterally at some point in the negotiations or later. Gibraltar position will not be covered, still less guaranteed, by the terms of the exiting UK’s Treaty – a reversal of the power balance in 1973.
Longer term, as a remaining Member state, post-Brexit Spain will have the whip-hand not only on frontier fluidity, but on a wide range of issues, which are contentious even now, for as long as the EU sticks together. As Philip Hammond warned pre-Referendum, the UK would not be able to influence EU decisions on Gibraltar, once we are out of it.
COULD IT HAVE BEEN DIFFERENT?
Undoubtedly, Gibraltar’s case has been fully and eloquently explained abroad, and has no doubt been fully understood abroad, as Robin Walker stated in the House of Commons last week. But as the wise SNP MP, Ms Cherry, observed in the Westminster Hall debate in what now seems an age ago, the problem was not that Westminster - from the PM downwards - did not understand Gibraltar’s concerns; the problem was one of ‘leverage’. How much influence does Gibraltar possess to have its needs, particularly on border fluidity, covered in the eventual exiting Treaty?
Fanciful notions of Gibraltar securing our own status within the EU (reverse Greenland and the like) proved to be exactly that, the product of fancy and an overblown judgement of what Gibraltar could achieve without the UK’s support, or indeed independently, no matter how many trips abroad, interviews and meetings, including the CM’s appearance before the European Parliament’s Foreign Affairs Committee, where a Spanish representative told him to take his concerns to Westminster.
GIBRALTAR REALITIES
Indeed, the reality has forever been that Gibraltar’s international status was dependent on the UK, no matter what heights of prosperity have been climbed or how much nation-building achieved – all very worthwhile in itself and good for our collective ego. But without the UK and with Spain next door, “Gibraltar would be a cork in the ocean without Britain”, to use Bill Cash MP’s metaphor decades ago. It is a reality that our burgeoning autonomous institutions, which we achieved from Britain, kept from many Gibraltarian eyes (especially the younger generations), for no matter what until the present crisis, and which has not been lost, it would appear on our Gibraltar politicians, including our Chief Minister, when he spoke of “the red, white and blue blood” coursing through his veins. Or on the Deputy Chief Minister, when he announced that National Day would be Referendum Day this year. All very welcome; for no matter what, Gibraltar must be as close to the UK as possible.
No - in the Brexit context, things could not have been much different under different Gibraltar Governments, in my view. Theresa May’s Government and the Brexit ministerial team was never going to fight for a ‘differentiated’ status for Gibraltar in the negotiations, as apparently it is willing to do for the Irish border or the City of London or the car industry.
As with the claims of any and all the ‘devolved authorities’ of the UK, however they voted in the Referendum, there will be one exit – the ‘red, white and blue’, national exit i.e. a United Kingdom Exit Treaty. If Scotland wants differently, it will have to have to hold another independence referendum. And if Gibraltar wants differently, it will have to accept Joint Sovereignty. Fluidity at the frontier; passporting rights within the EU; cross-border justice and security will be the subject of bilateral, not EU negotiations.
IRISH BORDER
Could not Gibraltar be treated like Northern Ireland? It seems that the British Government’s assessment has been that Northern Ireland does not have a contiguous ‘Spain’, but a country with whom many fundamental differences have been sorted, and where there is a common interest in preserving the status quo ante Brexit at the border. Dr Joseph Garcia no doubt learned much from his visit to Belfast about how it was proposed to deal with issues on the Irish border by Treaty post-Brexit; but I fear that those lessons will not be applied at Gibraltar’s frontier as part of any exit Treaty.
Gibraltar will have to rely on bilateral negotiations. As the CM has said, with ‘good will’ our frontier could function in the interests of both sides, whatever the legal arrangements. It is to be hoped that this commonality of interests will inform the bilateral negotiations, whenever they come, and that any bilateral deal between the UK and Spain will be more stable and lasting than the Cordoba agreements. It would not be good for Gibraltar that Anglo-Spanish issues, such as that of the situation of the expats living in Spain, should be resolved, whilst that of British subjects and EU citizens in Gibraltar, should be left to the vagaries of future Spanish Governments.
SHIFTING THE UK GOVERNMENT
With all this, it is legitimate to ask whether the Gibraltar Government has accepted that Gibraltar issues will be dealt with bilaterally and not in the EU negotiations, or whether it is still trying to shift the UK Government. What goes on in the Joint Ministerial Council is confidential.
The course of the EU negotiations proper will be tracked in Parliament, and Parliament will have a vote on the final deal. But I fear that any hope that Parliament will scrutinise Gibraltar’s case, as Gibraltar’s Opposition appeared to suggest, is over-optimistic. The Gibraltar lobby in Parliament, once so influential, is extremely weak these days, as the big debate showed.
But it is badly needed; if anybody, it is MPs who would be able to exert ‘leverage’ on Gibraltar’s behalf.