Gibraltar, and reviewing the Brexit ‘bill of goods’

UK and EU leaders, including Gibraltar and Spain, report nearing a post-Brexit agreement for Gibraltar, dubbed the last major Brexit issue. Gibraltar’s complex status and its 96% EU support contrast starkly with broader UK sentiment.

L ast Friday saw a potentially significant piece of Brexit news with the joint statement of the first meeting in its current format of political leaders from the UK, EU, Spain and Gibraltar, which reported that “significant progress” had been made towards achieving an agreement about the post-Brexit arrangements for Gibraltar. This was followed by widespread media reports that such an agreement was very close, and “within kissing distance” in the words of Gibraltar’s Chief Minister, Fabian Picardo.

An agreement about Gibraltar was described in the Financial Times as “the last big unresolved problem of Brexit”. That is slightly misleading in the sense that Brexit is, and will remain, an ongoing process, giving rise to ongoing problems, and even to ongoing negotiations, if only because of the joint governance structures that exist in relation to various part of the Withdrawal Agreement and Trade and Cooperation Agreement. But it is true in the narrow, yet important, sense that it marks the end of the negotiations which began in 2017 between the UK and the EU about the institutional form of Brexit.

As such it is a good time to take stock of the Gibraltar strand of Brexit and how that intertwines with the Brexit saga and, ultimately, to the extent that it does represent a certain kind of completion, a good time to take stock of Brexit itself.

Gibraltar and Brexit

Gibraltar’s situation is complex. As a British Overseas Territory it is not part of the United Kingdom but is a part of the UK’s sovereign territory, a sovereignty long-disputed by Spain since having conceded it in the Treaty of Utrecht of 1713. In recent years Spain has sought various models of joint sovereignty over what the UN currently characterizes as a non-self-governing territory. However, Gibraltar has twice, in 1967 and 2002, held referendums showing massive 99% majorities for remaining as UK sovereign territory. Yet in the Brexit referendum, opinion was completely different to that of the UK itself, with 96% support for remaining within the EU. This situation, along with the military significance of ‘the Rock’, its border and economic entanglement with Spain, and its role as a tax haven, means that Brexit posed a particular conundrum.

Even before the referendum, the status of Gibraltar was a fraught issue in UK-Spanish relations, so it is actually quite surprising that negotiations over its post-Brexit situation have dragged on rather quietly for so long, especially given that it gave rise to the first flashpoint in the Article 50 process. To briefly summarise that row, immediately after the UK gave notice under Article 50 at the end of March 2017, the EU Council produced its draft negotiation guidelines, which included a paragraph to the effect that no agreement on the EU’s future relationship with the UK would apply to Gibraltar without the agreement of Spain. Quite what that meant at that time was slightly obscure, since there were different understandings in play as to whether the future relationship would require unanimous agreement of all EU members (which would include Spain anyway), and for that matter different understandings of how the future relationship would be negotiated (at that stage, the UK was still pushing for it to be done in parallel with the Article 50 talks).

However, one thing it very clearly meant, even if only symbolically, was that the EU regarded Spain as having some kind of special status as regards Gibraltar and, whilst that might be taken to be no more than a recognition that it was the only country apart from Ireland where there was a land border with the UK territory, it also seemed to recognize, if not to uphold, Spain’s claim to sovereignty over Gibraltar. Certainly that was how it was taken by Brexiters, and it unleashed a torrent of jingoistic nonsense, to the extent that some even speculated about going to war with Spain over the issue.

This episode happened almost exactly seven years ago, and many may have forgotten it, but it is worth recalling now, not just because a Gibraltar deal is finally in the offing, but because even at the time it foreshadowed some more general lessons, which I identified in my piece of 2 April 2017, the consequences of which are still playing out.

The lessons of Gibraltar

Lesson #1: The negotiating process

One lesson was, indeed, about the issue of the sequencing of exit and future terms negotiations, and the fact that the EU was clearly not going to accept the UK’s suggestion, in Theresa May’s Article 50 letter, that these be conducted in parallel. The roots of this actually went back much further. Before the referendum, the Vote Leave campaign had promised: “Taking back control is a careful change, not a sudden stop - we will negotiate the terms of a new deal before we start any legal process to leave.” This was always nonsense in terms of the Article 50 process – the only legal leaving process that existed – and an hour before the referendum result was officially confirmed the European Council had already circulated an advisory note to EU members reiterating this.*

In one way, that lesson was fairly quickly learned. Having threatened that it would be the ‘row of the summer’ of 2017, when the time came, shortly after May’s disastrous 2017 election, Brexit Secretary David Davis immediately capitulated to ‘sequencing’.  Yet in other ways the lesson went unheeded in that, throughout the negotiations, UK politicians and the media frequently confused or conflated exit and future terms, and Boris Johnson deliberately did so in the 2019 election, when he proposed his ‘oven-ready deal’ as something which would ‘get Brexit done’ when it was, in fact, only the exit deal.

Ever since then, many of the Brexit Ultra MPs have persisted in the belief that the Northern Ireland Protocol part of that deal was somehow temporary, contingent on the terms of the future trade deal (on the most charitable interpretation, this rests on a confusion between Johnson’s ‘front stop’ Protocol and May’s ‘backstop’, but even that degree of charity entails that those MPs were lamentably incompetent). More generally, even now, Brexiters represent the acceptance of sequencing as the first failure of May to ‘play hardball’ with the EU, and hence it is a foundational component of their explanation of why Brexit hasn’t been done ‘properly’.

It’s a myth which will not die, and was trotted out yet again last week by Liz Truss (as she seeks to drum up sales for a political memoir variously described by reviewers as “self-serving” and “ludicrous”, “shamelessly unrepentant, petulant … and cliché-ridden”, and “weird”). I suspect it will be years, if not decades, before this myth finally disappears from British politics.

Lesson #2: The meaning of a union

The second lesson of the April 2017 Gibraltar row was that whilst the EU would negotiate as a bloc, and in the interests of the bloc, it would do so with particular regard for the interests of those members most directly affected by Brexit, such as Spain, Cyprus (in relation to UK military bases) and, perhaps most of all, Ireland. This again exposed the hollowness, if not downright ignorance, of the Brexiters’ pre-referendum position, most notoriously articulated by David Davis when he asserted in May 2016 that “the first calling point of the UK’s negotiator in the time immediately after Brexit will not be Brussels, it will be Berlin, to strike the deal: absolute access for German cars and industrial goods, in exchange for a sensible deal on everything else. Similar deals would be reached with other key EU nations.”

It was an especially idiotic idea given that one of the Brexiters’ own objections to the EU was that it did not allow its members to make their own trade deals, and such nonsense was quickly exposed as such. However, it never quite died and, throughout the negotiations, the UK frequently used – whatever the Ultras may say – “hard tactics” to try to pressurise individual states or even regions into breaking the EU’s unity, as recorded by a key member of the EU’s negotiating team, Stefaan de Rynck, in his book Inside the Deal (p.61).

That these failed reflects, as the early Gibraltar row portended, the care which the EU took, and will continue to take, over protecting the specific interests of its member states, including small ones like Ireland (compare this with Davis’s airy reference to “key” EU nations). As such, it also served as a reminder of the ways that sovereign power is magnified, rather than extinguished, by EU membership. The contrast with the carelessness, bordering on disdain, with which the London government treated the interests of Scotland, Wales, Northern Ireland and, in a sense, Gibraltar itself, was a marked one. There is still no sign that Brexiters or the British government have learnt any aspect of this second lesson.

Lesson #3: The complexity of Brexit

The third of the lessons identified in my piece about the 2017 Gibraltar episode was that, even leaving aside the nature of the exit process, it was an early example of the huge number of complex problems which Brexiters had poured scorn on during the referendum, but which the UK was now going to have to face up to. For although it was certainly not a major campaign issue, the possible implications of Brexit for Gibraltar had been pointed out.

In particular, in May 2016 the then Foreign Secretary Philip Hammond had said: “I genuinely believe that the threat of leaving the European Union is as big a threat to Gibraltar's future security and Gibraltar's future sovereignty as the more traditional threats that we routinely talk about.” The reaction from Brexiters was furious, with Liam Fox enraged that the possibility should even have been mentioned, saying “I think there are limits to what you can and cannot say in any campaign that goes way beyond acceptable limits” (sic). All this had been reported in the Daily Express under an inevitable headline about ‘Project Fear’ yet, just a few months on, and there was actually talk, admittedly ludicrous, of going to war to defend sovereignty over Gibraltar.

As the months and years have gone by, just about everything which the Brexiters said would be simple, quick, and easy has been shown to be complex, slow, and difficult. It’s true that there have been exceptions. Rolling over EU trade deals proved less difficult than many, including me, thought, and so has the creation of a Nuclear Cooperation Agreement with the EU, following exit from Euratom. That’s not to say that either of these things has been beneficial, but they haven’t presented the intractable problems associated with, say, the search for ‘frictionless trade’, or a solution to the Northern Ireland Trilemma.

However, the general picture is that almost everything, from fishing quotas to residency rights, has thrown up massively more complexity than the Brexiters had admitted, or even understood, before the referendum. And this remains the case. Just last week, Trade Secretary Kemi Badenoch spoke of the increased trade barriers with the EU as being something done by the EU to the UK rather than something chosen by the UK. Then came yesterday's truly ludicrous news of yet another delay in the introduction of import controls on goods coming from the EU (more on this in future pieces, no doubt).

Gibraltar in limbo

As regards Gibraltar itself, after the initial flare-up in 2017 its post-Brexit future became detached from the main Brexit negotiations and effectively ‘parked’, following an agreement in November of 2018 as part of the attempt to get May’s ill-fated Withdrawal Agreement off the ground, and it was not covered by the eventual trade agreement, simply leaving the single market at the end of the transition period (it had never been part of the customs union).

Since then, the territory has been “in limbo”, operating under the terms of a series of Memoranda of Understanding created in 2018, and then a temporary agreement made in December 2020 which also set the path for negotiations for a UK-EU treaty. This has enabled Gibraltar to be a party to the Schengen agreement, allowing an open land border with Spain, and for Spain to be involved in policing its port and airport – these, along with regulatory alignment, being amongst the most disputed issues in the negotiations.

However, this does not mean that these temporary arrangements have run smoothly. For example, in April 2022 several British citizens were refused entry into Spain from Gibraltar because they did not have documentation showing onward travel or evidence of being able to financially support themselves in Spain. Brexiters expressed outrage, apparently unable to understand that they are not alone in wanting to secure borders from potentially illegal immigration.

Meanwhile, after some fractious pre-negotiation, negotiations for a formal treaty began in October 2021, since when there have been seventeen rounds of talks. As discussed in relation to other policy areas in one of my recent pieces, the churn of Prime Ministers and Foreign Secretaries since then may have been one barrier to progress. It is of note that the conduct of the negotiations gave rise to one of the allegations of bullying against one of these Foreign Secretaries, Dominic Raab, which led to his subsequent resignation as Deputy Prime Minister. That allegation arose because a senior civil servant had supposedly jeopardised UK sovereignty over Gibraltar, emphasising how this concept has continued to lie at the heart of the negotiations.

There were rumours of a deal in December 2022 and again in November 2023, so it is possible that nothing will come of the latest announcement. However, there is now a clearer sense that there has been political agreement, perhaps a result of David Cameron becoming Foreign Secretary, and that the outstanding issues are of a technical nature. It seems likely that any agreement that is reached will entail Schengen area passport checks being undertaken at Gibraltar’s port and airport by EU Frontex staff (rather than Spanish border staff), accompanied by an agreement to keep the Spanish-Gibraltar land border open without checks, and some form of joint UK-Spanish management of the airport (which has a particular sensitivity as it is also an RAF base), as well as full regulatory alignment.

These possibilities have already attracted the ire of Brexiters such as Bill Cash and Andrew Rosindell, and dark mutterings of “the EU taking Gibraltar by stealth” in the Telegraph, but how much actual opposition they would put up to an agreement is unclear. Very likely, as with the Windsor Framework, the power, and perhaps even the interest, of the ERG will be shown to be much reduced.

Crucially, as with the Northern Ireland situation, and in a different way with the import controls situation, the Brexiters have no answer to the fundamental conundrum, which is of their own making: they have created the need for a border but don't want to create a border. More generally, their naïve idea of untrammeled sovereignty has again been exposed to the realities of power and found wanting. But if they are not able to prevent a deal, nor are they able to understand why a deal has been done. The warships will not sail, and Gibraltar will become yet another grievance of Brexit betrayal.

The Brexit bill of goods

As Brexit issues go, Gibraltar has received less attention in the UK, at least, than it should have done (I include myself in that criticism) although, of course, there are good reasons why Northern Ireland, to take the most obvious, somewhat comparable, issue, has received so much more. Yet it is a revealing one, not least as a reminder of the quite casual, careless way in which the Brexiters tossed the lives of so many people into disarray, uncertainty, or even crisis.

It is also an example of the way that the entirety of the Brexit process is a still unfolding lesson in the realities of what Brexit means, as compared with what Brexiters claimed it would mean, a lesson which is only very slowly and painfully being learned as Brexit continues its relentless degradation of national life. Just in the last week, there have been more instalments, from news of medicine shortages to news of restaurant staff shortages to news of garden centres having to stockpile goods, whilst the latest import controls delay continues to expose us to increased risks of disease and sub-standard products. But although the lesson is by no means over yet, there comes a moment at which it is reasonable to set a test, and that surely cannot wait for the 25, 50 or even 100 years that, since though not before the referendum, some Brexiters have suggested need to pass to assess their project. Nor can the test of success be, as most Brexiters these days seem to imagine, whether it has been less damaging than the worst predictions made for it. Brexit was, after all, sold as a positive project.

In an interview the other day, the actor Michael Douglas remarked, apparently in passing, that Britain was “sold a bill of goods” (meaning something passed off in a deception or fraud) and that “they should take the old political speeches that were made [before the referendum] … they should remind people of what they were promised”. It’s such an obvious point, and yet one rarely made in British political discourse. People should indeed be reminded of what David Davis promised in the article I referred to earlier. Or of what Daniel Hannan promised. Or of what Vote Leave’s slick, shamelessly manipulative video promised Brexit would mean for the NHS.

This isn’t about picking around in the entrails of long-past events. It is about promises made to the British people less than a decade ago, and made by people many of whom are still active in political life. Moreover, many of those people are now, like Hannan, using the same tricks to urge us towards an equally ruinous Brexit 2.0 of ECHR derogation to, as he put it last week, “finish the work of Brexit”, whilst others are now seeking a referendum on immigration.

We live in a time when almost every controversial decision or event is made subject to an independent inquiry. None of them relates to anything of the magnitude of Brexit, which surely warrants such an inquiry. If a Gibraltar deal is about to be done, and the long years of literal Brexit negotiation are finally ended, that would be the ideal time. It won’t happen, of course, but here’s a thought: if, as David Lammy said last week, the coming Labour government will be committed to ‘progressive realism’ in foreign policy, including relations with the EU, then what better place to start than a realistic assessment of whether Brexit has lived up to the promises made for it?

GOING FURTHER

(*) There are two different issues nested within this. One is about the EU successfully insisting that there could be ‘no negotiation without notification’ (i.e. without triggering Article 50). The other is about whether any discussion of future trade terms could be undertaken prior to the completion of the terms of the Withdrawal Agreement. On the latter, whilst refusing the UK’s attempt to undertake the two sets of talks in parallel, the EU somewhat softened its position to the extent of agreeing that the talks within the Article 50 period could encompass two sequenced phases, the first broadly agreeing exit terms and, subject to ‘satisfactory progress’ on these, a second that would finalise the exit terms whilst also discussing preliminary future terms. Phase one was ostensibly completed with the agreement of December 2017 but, for reasons far too long to be summarised here, phase 2 discussions about future terms never really happened (for details, see just about every piece on this column for the two years after that date, or chapters 2-5 of my book Brexit Unfolded).

Sources:

▪ This piece was first published in Brexit & Beyond and re-published in PUBLIC SQUARE UK on 23 April 2024 under a Creative Commons Attribution-NonCommercial 4.0 International licence. | The author writes in a personal capacity.

▪ Cover: Unsplash/Michal Mrozek. (Licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.)