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Brexit Opinion & Analysis

Under the draft withdrawal Protocol, Gibraltar’s Brexit position is protected

The Gibraltar Protocol contained in the draft UK/EU Withdrawal Agreement respects the UK’s constitutional relationship with Gibraltar.

It also makes clear that the agreement is without prejudice to the respective legal positions of the UK and Spain on sovereignty and jurisdiction.

As such, if - and it is a big if - Theresa May and the draft agreement survive the coming hours, days and weeks, Gibraltar’s position moving forward is protected.

The Protocol, in the wording of the document itself, will be implemented “…in accordance with the respective constitutional orders of the Kingdom of Spain and of the United Kingdom.”

That means the agreement implicitly acknowledges the 2006 Constitution agreed by the UK and Gibraltar, including the Gibraltar Government’s constitutional role and responsibilities, and the rights that the constitution affords to individuals.

The document published yesterday is only one piece of a wider jigsaw which will also include separate Memorandums of Understanding on practical matters relating to Gibraltar and its relationship with Spain and the EU.

Taken as a whole, this package of documents is the product of months of intense, complex negotiations between the UK, Gibraltar and Spain.

“The Protocol on Gibraltar between the UK and the EU will be underpinned by other arrangements between the UK, Spain and the Government of Gibraltar which set out the parties’ commitment to cooperation,” the UK Government said last night in a separate document explaining the detail of the agreement.

“These will be implemented in line with the constitutional arrangements in place between the UK and Gibraltar.”

The Gibraltar Government said the draft deal is “far better for Gibraltar than crashing out” of the EU without an agreement, something which, given the upheaval in UK politics, may yet happen.

It also dismissed any suggestion that the agreement was in effect a bilateral deal done by the UK and Spain, or that it contained any type of concession on core issues.

“This Protocol contains absolutely no concessions on sovereignty, jurisdiction or control,” Chief Minister Fabian Picardo said.

“We would not have accepted it if it had.”

“There are no issues of bilateralism that can cause any concern.”

“Gibraltar, for EU purposes, has always been included in the definition of the Member State United Kingdom.”

The Gibraltar Protocol ensures that the terms of the divorce deal apply to Gibraltar and that the Rock is included in the transitional arrangements after the end of March next year.

In practical terms, it means that when we leave the EU alongside the UK in 2019, we will benefit from a cushion that maintains the status quo until the future relationship is agreed by the UK and the EU.

But this is just the first step in the Brexit process, covering us only for the transitional period to the end of 2020 while the UK negotiates its future relationship with the EU.

For Gibraltar, there are great challenges and risks ahead, but the Protocol ensures that for now at least, little will change.

That will give a degree of certainty not just to individuals but, crucially, to the businesses that keep our economy going, a certainty bolstered by the bilateral agreements on UK market access agreed separately by Gibraltar and the UK.

The underlying aim of the Protocol is the core position that “…it is necessary to ensure an orderly withdrawal from the Union in relation to Gibraltar..”

That orderly withdrawal includes an explicit recognition that “…any potential negative effect on the close social and economic relations between Gibraltar and the surrounding area, in particular the territory of the municipalities that make up the Mancomunidad de Municipios del Campo de Gibraltar in the Kingdom of Spain, is adequately addressed.”

“The Protocol and other arrangements address issues of importance to citizens and businesses in Spain and Gibraltar; and reflect a shared desire to work together in a spirit of trust and solidarity in support of the shared prosperity and security of the area,” the UK Government said.

“They are, or will be, without prejudice to respective positions on sovereignty, and do not in any way affect the UK’s sovereignty over Gibraltar, including British Gibraltar Territorial Waters. Nothing in the Protocol affects the relationship between the UK and Gibraltar.”

The Gibraltar Protocol sets out the bare framework for future cooperation with Spain in a number of different areas, with a specialised committee to be established - as will happen with other protocols on Northern Ireland and Cyprus - to oversee its application.

It includes:

- a commitment to exchange of information on cross-border workers residing in Gibraltar or the Campo;

- the creation of a forum for discussion of employment and labour conditions;

- full transparency in tax matters including “…an enhanced system of administrative cooperation to fight against fraud, smuggling and money laundering, and to resolve tax residence conflicts”;

- compliance with international standards of fiscal governance, tax information exchange mechanisms and measures against harmful tax practices, something which Gibraltar already complies with;

- tighter measures on illicit trade in tobacco, including reciprocal information on traceability of tobacco products;

- the establishment of a coordinating committee on the environment for regular discussion “between competent authorities” - under the 2006 Constitution, this means the Gibraltar Government - on issues such as waste management, air quality, scientific research and fishing;

- a committee to monitor and coordinate cooperation on policing and customs matters.

Gibraltar’s airport is not covered by the protocol, but at present this is largely academic because Gibraltar only has flights to and from the UK and Morocco, not to EU destinations.

The detail of the agreements on those different areas will be published in the coming days in the MoUs agreed with Spain.

“I am satisfied that the aspects of the proposed Withdrawal Agreement which relate to Gibraltar work for Gibraltar,” Mr Picardo said yesterday.

“There are many more documents to be published so that every part of the Protocol and its effect on Gibraltar can be properly analysed and understood.”

Assuming, of course, that the Prime Minister and the Withdrawal Agreement can weather the storm in Westminster.

Last night, as senior UK ministers resigned and pressure mounted on Mrs May, that looked increasingly unlikely.

Last night, Mr Picardo said that if the deal was voted down in the House of Commons, the position was not clear as to what would happen.

“It’s not clear whether that will force a renegotiated in Brussels and whether there might be changes to the deal, or whether we move to a ‘no deal’ which is not good for Brussels, any of the member states, the United Kingdom and indeed Gibraltar,” he said.

“Regulated relationships are better unregulated relationships.”

“But we will be ready for any eventuality. We have thought through what the two potential eventualities are on the morning of the 30th of March 2019.”

“We could have a Withdrawal Agreement, and we’ve done what we had to do to form part of it. Or ‘no deal’, and we’ve done what we need to do to ensure that one the morning of the 30th of March, Gibraltar can continues to operate its businesses and, when it comes to the basics, have its people live their lives in the same way as if we continued to be part of the European Union.”

Main photo: The Gibraltar delegation leaves the Cabinet Office in Whitehall on Wednesday. Photo by Johnny Bugeja.

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