With the Brexit dust settled, where does Gibraltar stand?

So, now the dust has settled where does Gibraltar stand?

I’m talking about Brexit of course, and the conflicting views as to whether Spain actually gained anything from its eleventh-hour strop that threatened to derail last Sunday’s European summit at which the draft withdrawal agreement and the political declaration for the UK’s future relationship with the European Union were endorsed.

On the eve of the summit, Prime Minister Pedro Sánchez grandly announced that he was lifting his so-called veto on the talks taking place because he’d extracted “historic” and “transcendental” concessions that would eventually lead to the resolution of the 300 year old dispute over Gibraltar, no less.

In truth I was a little concerned as I heard him live on television, and there are reasons to be wary. If, against the odds, the House of Commons approves the withdrawal agreement, there’ll be a transition period after which negotiations will enter the “future relationship” phase. At that point Spain would indeed be able to block any trade deal. Not arising out of anything that happened last weekend, but because future EU/UK agreements require unanimous approval. Each member state, not only Spain, would thus have a veto.

Some commentators have been highly critical of what they see as a British climbdown. Writing in The Independent, Sean O’Grady says “the fate of Gibraltar – constitutional, economic and political – is now subject to a foreign power with the force of the EU behind it”. Meanwhile the chairman of Lawyers for Britain, Martin Howe QC, considers that prime minister Theresa May’s “loud and voluble protestations that she will protect Gibraltar from Spanish incursions into its sovereignty are completely worthless, because she is handing to Spain the legal power to insist on its terms for Gibraltar as its price for allowing the UK to escape from the disastrous (Irish) backstop Protocol”.

It was concerning, too, to hear European Commission president Jean- Claude Junker say that the EU was “with Spain”. If that’s true today, how much more so will it be the case after the UK leaves the club and he no longer has to carry out a balancing act between two of its members?

Nevertheless the EU declined to reopen the negotiations, as Pedro Sánchez would have liked, to insert a clause giving Spain the power to veto the application to Gibraltar of any future agreement between the EU and the UK. For all his bluster and bravado, the legally binding withdrawal agreement remained unaltered as did the political declaration.

As chief minister Fabian Picardo pointed out in his televised message on Sunday night, “Spain has had to accept a clarification which does not have the weight of legal value that it sought”. And he dismissed declarations that the Spanish premier said he’d agreed with other member states as “pieces of paper that will have no legal effect”.

My initial worries were also substantially allayed when I saw the reaction of Spain’s opposition parties and much of the press. For the PP, the agreements are “shameful” and “a historic failure”, while deploying a footballing analogy, Ciudadanos leader Albert Rivera said Mr Sánchez had taken his eye off the ball and conceded a last-minute goal.

Most of all, Theresa May has been steadfast and resolute. “Our message to the people of Gibraltar is clear”, she told MPs on Monday. “We will always stand by you. We are proud that Gibraltar is British, and our position on sovereignty has not and will not change”. For now, that’s good enough for me.

Spain Will Always be Spain

So much for Spanish goodwill in the Brexit process.

Barely a month ago the chief minister, Fabian Picardo, told parliament that he welcomed prime minister Pedro Sánchez’s “positive approach” to the discussions that left to one side the question of Gibraltar’s sovereignty. A beleaguered Theresa May even held up the (supposed) progress over Gibraltar as an example of how she was making headway in the Brexit negotiations.

Less than 48 hours ago, however, reality bit.

Ahead of a European Council meeting this coming Sunday that’s supposed to endorse the UK/EU draft Withdrawal Agreement, the Spanish government said it would not back the deal unless it’s clarified that separate discussions over the UK’s future relationship with the European Union will not apply to Gibraltar.

Madrid objects to clause 184 of the draft agreement. This asks the EU and the UK to “use their best endeavours … to take the necessary steps to negotiate expeditiously the agreements governing their future relationship”. As the draft agreement states in article 3(b) that any reference to the term “United Kingdom” includes Gibraltar, the Spanish government is concerned that Gibraltar will de facto be included in any “future relationship” agreement. This would frustrate Spain’s reported intention to revive its joint sovereignty proposal once the UK has left the EU.

To its credit Downing Street immediately backed the Rock. It emphasised that Gibraltar (as well as the other overseas territories and the Crown dependencies) would not be excluded from negotiations on the future relationship and said they would get a deal “that works for the whole UK family”.

Nevertheless these developments don’t augur well for the Withdrawal Agreement. Not only do they put the UK on a collision course with Spain, they also risk prompting other EU member states, some of which consider the EU has been too lenient with the UK, to look more closely at the agreement’s terms before giving them the green light.

Even if they do, it’s quite possible the UK itself will not.

The proposed deal was savaged by MPs from all sides when the prime minister presented it to parliament and it provoked a rash of resignations including that of Brexit secretary Dominic Raab.

It might not even be Theresa May who’s in the hot seat for the “meaningful vote” if and when it gets to the Commons. If 48 or more Conservative MPs submit letters of “no confidence” in her a vote of confidence will be triggered among all Tory MPs. If she wins, she’ll be safe for a year. But if she loses, there’ll be a leadership contest and Mrs May will be ineligible to stand. Heaven only knows what would happen with Brexit in that scenario.

I have numerous misgivings about the Gibraltar Protocol that forms part of the draft Withdrawal Agreement.

Why, for instance, does it oblige Gibraltar to put in place a tax system aimed at “preventing fraudulent activities”, not just in respect of tobacco, but alcohol and petrol too?

On what basis are we given a deadline (30 June, 2020) for adopting certain international tobacco measures while Spain is allowed to maintain the status quo in relation to Gibraltar’s exclusion from EU civil aviation measures?

And how come there so many clauses that smack of bilateralism through the back door? One example: “Spain and the United Kingdom in respect of Gibraltar shall establish the forms of cooperation necessary to achieve full transparency in tax matters ”.

The way things are shaping up though it may all be academic. The Withdrawal Agreement and its as yet unpublished Memoranda of Understanding may never see the light of day, and we’ll be back to square one.

The UK would then have to face the prospect of a no deal or put the whole Brexit question back to the people in a second referendum.

Here’s hoping!