Update – the Gibraltar Protocol

This article updates a previous article on the negotiations around the Gibraltar Protocol. Gibraltar provides an interesting point of comparison with Northern Ireland in terms of arrangements following the UK’s exit from the EU. The historical, social and geographical make-up of both Northern Ireland and Gibraltar require a bespoke solution which are being dealt with by way of protocols to the Withdrawal Agreement.

The Ireland/Northern Ireland Protocol was agreed before the end of the transition period. On 31 December 2020 an interim agreement was reached in relation to Gibraltar, which avoided a ‘no-deal’ scenario. The UK, Gibraltar and Spain also agreed to a framework document which was to be the basis on which the EU sought a ‘mandate’ for negotiation. The European Union (EU) has now published its mandate, which describes the purpose, scope and content of the ‘envisaged agreement’ from the EU’s perspective. At the time of writing, the UK has responded by stating that the mandate differs significantly from the framework document which had already been agreed.

The framework document

It is important to state that the framework document, although apparently leaked to the Spanish press, has not been formally published. As this document has not been formally published, it is not possible to compare the framework agreement with the mandate published by the EU.

The Chief Minister of Gibraltar, in evidence to a committee of the House of Lords and more generally in the Gibraltarian Parliament, did discuss the framework agreement. During these sessions, he emphasised the stance of both the UK and the Gibraltar Government on sovereignty, and stated that the framework was:

…entirely in keeping with the mandate that we had sought at the October 2019 general election: to agree terms for the fluid movement of people and an arrangement with Schengen—which is exactly what we have agreed to seek in the non-paper—an arrangement for freer movement of goods, and, potentially, an arrangement as regards the common customs union. The mandate that we obtained in the general election in October 2019 was to seek such a treaty.

The mandate specifies that the envisaged agreement will require a prior agreement of the Kingdom of Spain, where the burden of implementation will largely fall. The Commission ‘will maintain close contacts with the Spanish authorities throughout the negotiations and take their views duly into account’. The Explanatory Memorandum also states that the agreement aims at ‘establishing a new relationship between the Union and the United Kingdom in respect of Gibraltar that removes physical barriers to the circulation of persons and goods’.

Movement of people

With regard to the movement of people, the mandate seeks to protect Schengen by agreeing that Gibraltar’s border at the port, waters and airport be maintained by Spain applying relevant EU rules. Spanish border guards would have powers to enforce border control and carry out surveillance, as well as the ability to access necessary Schengen databases. UK nationals, other than those resident in Gibraltar at the time of the signature of the agreement, will be treated as third-country nationals for the purposes of entry and stay into Schengen. Further arrangements (known as ‘safeguard measures’), including police and judicial cooperation and alignment of visa and residence policy, are required to manage the land border between Gibraltar and Spain. These safeguards could include rules about cooperation in dealing with asylum applications, return of illegally staying third country nationals, passenger information and rules about the punishment of migrant smuggling. Spain would also have exclusive competence in issuing short and long stay visas and residence permits for third country nationals. This agreement would also seek rules around applying for residency in Gibraltar, with the effect that a ‘real’ connection to Gibraltar would be established by regular physical presence in Gibraltar, and not investment into the local economy or real estate.

Movement of goods

With regard to the movement of goods, the agreement aims to remove physical barriers, including physical infrastructure and related checks. It proposes a customs union between the UK and the EU in respect of Gibraltar (i.e. a union which covers the territory of Gibraltar but does not affect elsewhere in the UK). This could involve regulatory and tax alignment, as well as monitoring by Union and Spanish authorities.

The mandate also includes proposals for a governance structure, and room for agreement over transport, environment, social security coordination and citizens’ rights (insofar as these issues contribute to the objective of shared prosperity in the region).

The response of UK and Gibraltar governments

The UK issued a statement on 20 July 2021 acknowledging the mandate for negotiation and stating it was in ‘direct conflict’ with the framework agreement, concluded on 31 December 2020. The Chief Minister of Gibraltar, Fabian Picardo, has been quoted as saying that ‘there is no possibility for this forming the basis of an agreement’. The Government of Gibraltar has similarly issued a statement to the effect that the negotiating mandate strays too far from the framework agreement reached on New Years’ Eve.

As the Chief Minister also pointed out, however, this is not a binding document – it is a statement of the EU’s opening position in negotiations.

The Gibraltarian government’s statement on 22 July explicitly outlined some of the objections to the EU’s mandate:

But the notion that Spanish law enforcement officers might be present on our land, at our port or airport, is one that the Government or the people of Gibraltar will not accept. That is not something that can be finessed or negotiated. That is a non-negotiable red line. I have said so throughout this process and I will not change my mind or my position. The Cabinet as a whole will not change the position of Gibraltar. Anyone who wants to argue against that or think that they can negotiate around it are driving this process into a brick wall.

Additionally, most other parts of the EU mandate are equally unacceptable on matters related to asylum, residence etc. There are too many problematic parts of the mandate for it to form the basis for the successful negotiation of a treaty.

Under the proposed framework, the checks at the port and airport would be carried out by the Gibraltarian authorities and Frontex. The new mandate envisages this work being carried out by Spanish authorities, which may involve some contribution to the EU budget to account for the cost of setting these structures in place. Although the mandate explicitly states it will not affect the position of Gibraltar in terms of UK sovereignty, it is clear from the Chief Minister’s statement that there is discomfort at the idea of Spanish implementation of the eventual agreement. During his evidence to the EU Committee of the House of Lords, the Chief Minister of Gibraltar repeated his view that,

I do not think it is at all possible that even another Chief Minister would be prepared to agree to the presence of Spanish law enforcement in Gibraltar.

Conclusion

Both the implementation and the content of the agreement have already shown potential for controversy. As in the case of Northern Ireland, the territory of Gibraltar will require a bespoke deal which takes account of its unique geographic, political and historical context. As in Northern Ireland, the key issues are likely to be sovereignty and the movement of goods, especially in terms of any requirement to align with EU legislation on customs. The mandate shows a desire for a similar arrangement to the Northern Ireland Protocol in terms of alignment to EU regulations on some issues, but with more stringent requirements around the form of a customs union and around the movement of people. The proposed solution, especially with regard to the role of the Spanish authorities, has already prompted a firm response from the Gibraltarian Chief Minister and the UK Secretary of State.

Many commentators have pointed out the need for trust in negotiations, and in the administration of the treaties themselves, when they are agreed. Now that the mandate has been received, negotiators can begin navigating these issues and developing a sustainable agreement.