23 July 2021

The EU’s U-turn on Gibraltar is little short of a scandal

By

The Government in Madrid still does not like the fact that it does not own Gibraltar.

I can understand the sentiment. It took this country 350 years to sign a treaty accepting that France won the Hundred Years War. But Madrid’s political stance today is an obsession. 

Forget the hypocrisy of the Spanish exclaves in North Africa. Forget that Portugal is still waiting today for Spain to hand back the town of Olivenza after an agreement 200 years ago.

Forget that Gibraltar has flown the British flag longer than it ever flew the Spanish one. Forget that the Gibraltarians voted in 2002 to reject joint sovereignty. Forget too the critical role that the town played in British hands in the fight against fascism, while Spain itself was fascist. Or even in supporting Spain’s own fight for independence against Napoleon.

Madrid’s traditional position has certainly been to forget all the above, and whenever it feels some slight over the airport or where precisely the sea border runs, to push a petulant go-slow at the border. With remarkable masochism, many thousands of those worst affected have been Spanish nationals traveling into work. 

Changes since the referendum

Some years ago this behaviour began to be frowned upon by the EU institutions. Spain’s outspokenness over Gibraltarians voting in European Parliament elections was no doubt a further factor. It seemed border problems might become a thing of the past. When the Brexit referendum happened, Gibraltar understandably voted Remain by a long mile. 

Nevertheless, in the negotiations that followed, Madrid largely decided to be pragmatic. Spain had major economic interests at stake over fisheries, agricultural exports, tourism, and the large number of British expats using its health system. Meanwhile, there was lobbying from regional politicians concerned over the economic impact on southern Spain: the number of Spanish employees in Gibraltar even went up by another 2,000 after the referendum. The wider context meanwhile saw an unsettled national political scene, distracted by Catalonia, a bribery scandal, monarchy issues, and Podemos.

The other EU27 quickly accepted Spain’s claim that a national interest in play, implying a Brexit treaty veto so far as it wasn’t pushed too far. A few rumblings from Berlin some months later framed the practical limits to Spanish obstructionism. The May Government in 2018 then unhappily conceded that a set of separate negotiations would cover Gibraltar.  A series of memoranda of understanding (MoUs) were signed off – on tobacco, benefits cooperation, pollution, combatting smuggling, and taxation – but the substantive arrangements would be worked into a new treaty in a settlement set apart from the main Brexit treaty. And this would include the vexed question over how to handle the border crossing.  

This decoupling was very risky on the UK side and could have cost Gibraltar dearly. Fortunately, by the close of 2020, months of talks had generated an in principle agreement between the UK and Spain, which was then formally submitted by Madrid to the Commission. The agreement dealt with “maximised and unrestricted mobility of persons between Gibraltar and the Schengen area” on an initial four year basis, and would wrap up the areas covered in the MoUs plus various trade issues as well. 

An important feature was that this would be managed “by the introduction of a Frontex operation for the control of entry and exit points from the Schengen area at the Gibraltar entry points.” In other words, the EU’s border units would ensure the border would be run as a border, and not as a place to throw a tantrum.

However, several months on, the Commission has now formally responded with its recommendation, and it’s watered this deal down. 

The text now says merely that Madrid “may request Frontex assistance”, and while it notes that it has asked for that assistance, this falls well short of the level of guaranteed, overarching and direct engagement hammered out in difficult talks last December.

There are other ambiguities. The arrangement is to be overseen by a “governing body”, which will include Spain on it, but is vague on what form will it take and what enforcement or intrusion powers it might have. But it is the issue of border management that is the rub. The wording of section 10 states that the agreement “should not affect the legal position of the Kingdom of Spain with regard to sovereignty and jurisdiction in respect of Gibraltar”. This is a predictable assertion of continuing Spanish irredentism, but also a one-sided one. It is, moreover, an ambiguous award of Spanish primacy on any issue where it claims an infringement of these nebulous rights. 

So Spain gets to run the EU side of the new border checks, when in the December agreement this was to be run via Frontex. That includes refusal of entry; and while the minimum provisions are to include that “persons who are legally resident in Gibraltar may not be denied entry in the territory of Gibraltar,” that’s not to prevent border officials running a go-slow that creates hours of backlog, or arbitrarily banning UK nationals from crossing the border.

It may yet be that these problems do not materialise, and perhaps the arrival of José Manuel Albares as Spain’s new foreign minister provides a window of opportunity. It is more likely that these changes stand and border problems roll in like breakers. 

You might argue that Madrid as a sovereign capital should have the right to be as arbitrary and unfriendly as it likes with running its own borders. But if you do, then you also have to admit that what has happened here over Frontex has been a breach of faith by the EU side. Is it a coincidence that this has happened at the precise moment where the flaws in the Northern Ireland Protocol have come into full view, and there are calls to trigger Article 16 to address them? 

The full story behind this border U-turn will be a scandal. Either Madrid has covertly lobbied to overturn its own agreement; or a Commission that claims to represent a “rules-based organisation” and says that Brexit agreements aren’t up for revisiting is being hypocritical, overturning a prior agreement hoping to deliver a permanent border crisis for it to use to its own institutional ends. 

Both prospects are cynical, selfish, and deceitful. Whatever the train of events though, it transpires that the diplomats and politicians who cannot be trusted over Brexit turn out to be on the other side of the Channel. 

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Dr Lee Rotherham is Director of The Red Cell, a Brexit think tank.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.