Foreign Office minister David Rutley insisted on Wednesday that the UK Government would remain firm on its red lines in the negotiation with the EU on a treaty for Gibraltar, as he was grilled by eurosceptic MPs who warned some aspects under negotiation represented “a significant diminution of British sovereignty”.
MPs on the European Scrutiny Committee raised concerns about the role and powers of EU immigration officials on Gibraltar soil, and about alignment with EU rules and the potential indirect oversight of the European Court of Justice [ECJ].
Mr Rutley, parliamentary under-secretary of state (Americas, Caribbean and the Overseas Territories) at the Foreign, Commonwealth and Development Office, was giving evidence to the committee in the House of Commons.
Mr Rutley has not been involved in the negotiation and his ministerial responsibility for the OTs is relatively recent, but he was accompanied during the session by Robbie Bulloch, the Europe Director at the FCDO and deputy chief negotiator in the talks.
“The United Kingdom will only reach an agreement with the EU on Gibraltar which the government of Gibraltar is content with, which safeguards Gibraltar sovereignty and which fully protects the operations and independence of the UK's military facilities in Gibraltar...” Mr Rutley said.
“These are effectively our red lines. They have been from the start and they continue to guide us as core principles in negotiation.”
Mr Rutley noted the recent high-level ministerial meeting in Brussels and said core elements of the treaty were agreed, including on the airport, on goods and customs and mobility of persons.
He said there was shared commitment to finalise a treaty that would bring “confidence, legal certainty and stability to the lives and livelihoods of the people of Gibraltar and the region without prejudice to the parties’ existing legal positions on sovereignty.”
Mr Rutley said “intensive negotiations” would continue in the coming weeks and that there was an “opportunity move this forward…possibly over the coming months, possibly sooner”.
He said there was no “hard deadline” and that the UK would do nothing “that runs roughshod through our red lines”.
“They’re very, very clear,” he said.
UNCONVINCED
But MPs on the committee appeared far from convinced as they probed Mr Rutley and Mr Bulloch for detail of the arrangements under discussion, focusing much of their questioning on immigration controls.
Mr Rutley said the Frontex proposal was “nothing new” and reminded MPs that the 2020 New Year’s Eve political framework had envisioned the EU borders agency conducting Schengen checks inside Gibraltar at the port and airport.
People arriving would first go through Gibraltar immigration controls, and then through Schengen controls, allowing them to move beyond Gibraltar into Spain and the Schengen area without further document checks.
For the MPs, this posed fundamental problems because foreign immigration officers would have a say in who could enter British territory and for how long.
Conservative MP David Jones put it to Mr Rutley that the UK Government was ceding to Spanish pressure and that Gibraltar “is as British as Berkshire”.
Mr Jones said “the issue of British sovereignty…is being compromised as a consequence of what is being proposed and appears to be acceptable, sadly, to the British Government.”
Mr Rutley replied that Gibraltar was “as British as St Pancras or Dover”, where EU immigration officials were stationed to speed up controls for people travelling to the Schengen area.
He said the aim of the Gibraltar negotiation was to guarantee mobility primarily for persons, and to do so while safeguarding British sovereignty.
But Mr Jones rubbished the comparison with St Pancras and Dover.
“You’re talking about British nationals entering a foreign country, I’m talking about British nationals travelling from one British territory to another British territory,” he said.
“And it appears to me rather alarming that the Government is on the brink of conceding that we British people should have to provide those biometric details to go to another part of our own sovereign territory.”
Mr Jones had asked whether, once the EU’s Entry Exit System [EES] became operational, British nationals arriving in Gibraltar would have to undergo biometric checks as per the new Schengen requirements.
FCDO official Mr Bulloch replied that negotiators were focused on the specific arrangements “as of today” but that once the EES enters into force, and if a treaty has been agreed by then, “there will need to be provision made in negotiation with the EU”.
90 DAYS
Another area of concern for Mr Jones was the application of the EU’s 90 days in 180 days limit on how long a non-EU national can stay in the Schengen area.
He was told the treaty envisaged different categories of traveller including Gibraltar residents and military personnel, but that a British national who was visiting the Rock and was not resident would be subject to that same limit.
“What if I wanted to spend, say, four or five months in the excellent Rock Hotel in Gibraltar and take advantage of the wonderful views and the antics of the macaque monkeys?” Mr Jones asked.
“Are you telling me that I would be prevented from doing so, from spending several months on British territory as a result of these arrangements?”
“The current [immigration] arrangements are, in any case, devolved to the Government of Gibraltar, but with an open border, then certain aspects of the Schengen rules would apply to visitors, but not to those who are resident,” Mr Bulloch replied.
“So, yes, if you were visiting, it would be as if you were visiting [the Schengen area].”
“So just for total clarity, I as a British citizen will be limited in the time I can spend in British territory?” Mr Jones pressed.
“If you were coming just as a regular visitor, not if you were coming for a longer stay visit,” Mr Bulloch said, adding British nationals could apply for residency and already faced a restriction on how long they could otherwise stay.
Mr Jones sought an assurance from the minister that the UK Government would oppose such arrangements but was told the matter was still the subject of a live negotiation.
Mr Rutley said he would prefer to provide a detailed response in writing.
“Because it’s a bit tricky, isn’t it?” Mr Jones said.
“We are in a live negotiation. We're trying to work through these issues,” the minister replied.
“So what I want to do is make sure you get a full answer.”
Mr Jones countered: “This is a matter of great concern, because despite the fact that we've received assurances from His Majesty's Government that there will be no diminution in sovereignty, it does seem to me that what I'm now being told does look like significant diminution in sovereignty.”
The Conservative MP pressed the witnesses again on whether a British national could be refused entry into Gibraltar by an EU immigration official.
“I find that very odd because we're still talking about a British territory and you're saying that British people can be refused access to British territory by Schengen officials operating on British soil?” Mr Jones said.
Mr Rutley began to stress again that these details were still under negotiation but was interrupted by Mr Jones.
“The answer is clearly yes, frankly, because that is a question that demands either a yes or a no answer, and if you can't say no, it looks like a yes,” the Tory MP said.
“The details here do need to be worked with,” Mr Rutley replied.
ALIGNMENT
Mr Rutley was asked about alignment with EU rules and whether the European Court of Justice [ECJ] would have any oversight role as a result of the treaty.
The minister replied that “in certain circumstances” there would be a need for alignment with EU rules, but that this would be done under Gibraltar law rather than as a direct application of EU law.
The DUP’s Sammy Wilson said it “all gets very vague” and warned that the experience in Northern Ireland had led to “a great deal of disruption”.
“I don't think there is a problem for the Gibraltarians ensuring that goods in Gibraltar and coming to Gibraltar are compliant with EU rules,” Mr Bulloch intervened.
“Most of them already are.”
“In terms of the ECJ, there's not going to be direct application of law.”
“There may be cases where there may be referral, but that is very different to direct oversight.”
Sir William Cash, the arch-Brexiteer who chairs the committee, said the issue of the ECJ’s role was “a fundamental question” and that the UK had repealed the court’s authority from its laws.
Even indirect application of its jurisdiction would be seen as “a very, very serious” matter by the committee, Sir William told the witnesses.
“Have I made that clear?” he added.
COMPETITION
Conservative MP Dame Andrea Jenkyns picked up a similar line of questioning and said sovereignty red lines were being “blurred” and that the UK Government risked “messing up” the negotiation on Gibraltar “as we did with the EU negotiation [on] Northern Ireland”.
Mr Rutley replied that, while there were “some parallels” between the Northern Ireland negotiation and Gibraltar, there “are more differences” than lessons.
Ms Jenkins asked how negotiators had approached commitments in the political framework agreement on competition and a level playing field.
Mr Rutley reminded Ms Jenkins that Gibraltar was primarily a service-based economy and that the volume of trade with the EU was small, adding services were not covered by the treaty.
“We need to have reciprocity and mutual agreement on the arrangements,” he said.
“That would be true for any negotiation that we have in any other treaty we have with other entities in other countries.”
“So that's what we're seeking to do here. They would be proportionate, given the goods that are being traded in Gibraltar and given the volume of trade as well.”
Asked if the EU was fearful of Gibraltar being used as a back door into the single market, Mr Rutley replied: “They would want to make sure that they protect the single market, that's clear.”
“And in any negotiation, as I said, we need to find some reciprocal arrangements to make.”
AIRPORT AND MILITARY
The MPs asked too on the airport and the operational independence of the Ministry of Defence.
Mr Rutley said the MoD, including the Secretary of State for Defence, was “absolutely involved” in the negotiations and that nothing under discussion would impact the British military’s ability to operate independently from Gibraltar.
But he said too that negotiators were exploring formulas to allow for commercial flights between Gibraltar and EU destinations.
“The airport and the airfield is run and managed by the Ministry of Defence, which will not change,” Mr Rutley said.
“But we can look at practical and technical options to facilitate flights to Gibraltar in the EU.”
“But the key point here, which I think the committee wants to know, is that nothing changes in terms of the airport and the airfield, in terms of the way it's run and managed by the MoD.”
He added that facilitating flights with EU airports would require “some practical issues” to be considered, and that these were under negotiation.
“But the fundamentals about the role of the MoD remain the same,” added.