Where is our Government on BREXIT; is it All Just Spin?

Recent interventions in the UK Parliament involving the Chief Minister and David Davis, the UK BREXIT Secretary, and the reaction of the Chief Minister to Mr Davis’ interventions on the subject of Gibraltar emphatically show that there is not a sufficient inquisitive and critical press, especially the printed press, in Gibraltar, whose insightful analysis and opinion would benefit democracy greatly.  The ease with which the spin of those in Government in Gibraltar, from time to time, can gloss over reality, occurrences and events without enough press question or investigation, followed by informed criticism is palpable.  Mr Davis, in his evidence before the House of Commons Select Committee on Exiting the EU, cut down and clearly contradicted the assertions, on the same subject, made before the House of Lords EU Committee by the Chief Minister, yet the Chief Minister sails on without facing press criticism from much of the press. 

The day before Mr Davis spoke, the Chief Minister had told the House of Lords Committee that BREXIT would be a multi-faceted deal with differentiated outcomes for different sectors of industry and parts of the UK, including Gibraltar, emphasising the differential by making reference to the possibility of a micro-sate.  In clear contradiction of that assertion, Mr Davis has told the House of Commons Committee that he did not envisage a special arrangement for Gibraltar as part of the UK’s deal to leave the EU but, in a bid to leave the door very slightly ajar, added that he did not rule it out completely.  Mr Davis stated, very clearly and forcefully, that “he would be loathe” to go down the route of a tailor-made BREXIT deal for Gibraltar to suit its own particular circumstances.  This is an assertion in the strongest terms.  The words used by Mr Davis are not mealy mouthed.

Yet the Chief Minister is allowed, without sufficient press analysis or criticism, to hang his hat on asides and to spin this by pretending that really the UK Minister expressed opinions “entirely in keeping” with the views that the Government has put to the Foreign and Commonwealth Office and the Department for Exiting the EU.  Of course, these views are not public and so are unknown but to a few.  However, the ability for the press to analyse and criticise remains, based on what is public.  What is public shows a clear put down by Mr Davis of the Chief Minister’s primary assertion that there could be a differentiated outcome for Gibraltar in the BREXIT negotiation.

Our Chief Minister then grabs onto the best distraction issue that exists in Gibraltar: that Mr Davis said also that the primary issue for Gibraltar is British sovereignty and the argument with Spain, adding that the UK had a firm position to respect the wishes of the people of Gibraltar and that this is written in his blood.  Well, it does not need to be written into the blood of the Minister.  It is written into our Constitution.  There is no doubt on the issue of our Britishness (sic) or the UK’s obligations in that regard.  The repeated reassurances by British Ministers is what may bring it into doubt but let us understand clearly that this is not doubted in Gibraltar, it is written into our Constitution.

What is clear is that our British sovereignty, precisely because it is engraved into our Constitution, is not what is in question in the BREXIT negotiations.  Consequently, it is not a primary issue in the BREXIT negotiation, as Mr Davis said also.  It is a consideration only because the Spanish Government is bringing it into the equation opportunistically (as usual).  What are primary issues for Gibraltar are those that the Chief Minister referred to the House of Lords Committee: achieving fluidity at the frontier and access to the EU Single market for services but, again as the Chief Minister stated clearly, undermining our British sovereignty is not a price that Gibraltar is willing to pay in return for obtaining the best outcome on these two issue.

It is of the utmost importance that, despite Mr Davis' comments, negotiations concentrate on the two issues that are of primary importance to Gibraltar, without falling into the trap of equating those with the issue of sovereignty.  It may seem that one party, Spain, may do its utmost to bring the issue of sovereignty into play but the clarity by which these are separate issues must be emphasised throughout.  After all, the UK’s desire to remain in the Single Market, whilst opting out of freedom of movement is another conundrum that seemingly does not have a solution right now. 

Only time will tell but in a piece published in this blog on the 29^th May 2016, just before the referendum, a question was posed:

 “... [Picardo as Chief Minister] and his Government will have to steer Gibraltar through the extremely difficult times that may follow a BREXIT vote.  The silence of Picardo and his Government on what its policies in this eventuality are is palpable.  Should the GSLP Government not be telling the people of Gibraltar what the Government’s intentions are in this eventuality? This is especially important in light of the enormous direct and indirect public borrowings that Picardo’s Government have incurred”

Well the time has come and yet we have no answer beyond that BREXIT is miraculously no longer an existential problem to our economy, as the Chief Minister said it would be prior to the referendum, and  the two primary issues identified above, but what if the situation with Spain or what Mr Davis has said do not allow for these two to be achieved?

BREXIT and Border Controls

The answer to the question, will BREXIT result in a change in border controls at our border, is, it depends.  

The answer depends, initially, on whether there is a “hard BREXIT” or a “soft BREXIT”, in terms of whether or not the UK (with the inclusion of Gibraltar) agrees to freedom of movement, meaning the right (with few exceptions) of EU citizens to live and work in any other EU country (that would include the UK and Gibraltar after BREXIT).  

Agreement to freedom of movement is inextricably linked, currently, to the subject of whether or not the UK (and Gibraltar,for services, as is the present arrangement, assuming that no other specific Treaty provisions impact on Gibraltar’s position) would remain in the EU Single Market.  This membership could beeither through EFTA membership (consisting now of Norway, Iceland and Liechtenstein) or by specific agreement, as is the case with Switzerland.  

The conundrum is that, seemingly, as the debate stand, the UK would wish to remain in the EU Single Market but to opt out of freedom of movement obligations.  This arrangement is not acceptable presently to the remaining EU members, so there is a likelihood that freedom of movement may not continue after BREXIT.

So what different treatment would apply at the border with Spain,on the basis that freedom of movement would cease to exist?  The answer is simple: applying current EU rules, there could be greater checks at our border that could cause delay, absent goodwill from Spain or special agreements.  

The principle that exists currently, as a matter of EU law, whichresults in a smother and faster cross-border flow would cease to apply.  This principle is that minimum checks, simply to establish identity by a rapid and straightforward check of passports or identity cards, are applied to EU citizens who enjoy freedom of movement.  It is this principle that the EU inspectors criticised Spain for not applying at our border when long queues were created by action taken by Spain in recent years.  It was this EU intervention that led to a return to a smooth fast flowing border.

So, absent goodwill from Spain or special agreement for our border, what EU rules would apply?  

A non-EU national, for stays not exceeding 90 days in any 180-day period, needs to possess a passport with a valid visa (if a visa is required, there is much press speculation on the question of a need for a visa that remains unresolved), justify the purpose of the intended stay, show sufficient means of subsistence, not have an alert issued in the Schengen information system that would lead to refusal of entry and not be considered a threat to public policy, internal security, public heath or international relations.  Entry may be refused if any of these conditions are not met, absent special reasons like humanitarian ones. Passports will be systematically stamped on entry and exit. 

If all this criteria is strictly applied at our border, one can see easily (not least from past actual experience) that the required checks will cause delays on crossing; delays that would impact on our economy and that of the Campo area.  One casualty could be those persons, be they Spanish nationals or other nationals, who cross the border daily to work in Gibraltar.  The other casualty would be the ability of British nationals (including Gibraltarians) to live in Spain. 

Regulation EC1931/2006 allows for special passes to be given, in certain circumstances, to cross-border workers travelling from a non-EU country to work in an EU member state.  It does not deal with the reverse situation that would be the applicable one at our border.  Accordingly, if no special overall arrangement is reached to govern our border crossing, a bilateral arrangement would be the available solution to facilitate border crossings by cross-border workers from Spain into Gibraltar. The ability of British nationals to reside in Spain would need, also, to be dealt with by agreement flowing from the negotiations.

Only time and negotiations will clarify these issues that impact on our border and those Gibraltarians who live in Spain but an understanding of the current position is needed to inform any discussion during the BREXIT process. Gibraltar did have different arrangements from the UK at the time of the original accession into the EU, when Spain was not an EU member, which indicates the ability for differences to be agreed that are applicable to Gibraltar and not the UK.  Today, however, Spain is an EU member; the extent that Spain will be involved in issues that engage Gibraltar and the extent of the influence that it will yield on this front is still to be seen. Let us hope that realism and pragmatism will prevail for the benefit of the whole area, importantly the hinterland, which can ill afford an artificial and avoidable economic downturn arising out of purely political motives.