Treaty negotiators must ‘find a way around the past’, CM says

Chief Minister Fabian Picardo has urged Spain to reflect on why Gibraltarians will not accept the presence of armed uniformed Spanish officers inside Gibraltar as part of any UK/EU treaty, adding that understanding those reasons was key to “finding a way around the past”.

He was speaking after the Spanish Government, in a response to a question in the Spanish Senate, said it expected Policia Nacional officers to play a direct role in implementing Schengen immigration controls at Gibraltar’s airport and maritime entry points.

The UK and Gibraltar governments have from the outset ruled out the presence of uniformed Spanish officers on the ground in Gibraltar as part of any treaty.

In an interview with the Chronicle, Mr Picardo said Gibraltar’s resistance to “Spanish boots on the ground” had to be understood in the context of the “psychological reality” of Gibraltar politics and its roots in what he described as six decades of constant negativity from Spain.

“I think there is a desire on the part of the socialist administration in Madrid and the socialist administration in Gibraltar to get beyond those things,” he said.

“But you can’t get beyond them without understanding them, what brings them about, and making people feel different about the future.”

“The nationalist drum is the easiest one to bang, here and there.”

Mr Picardo said the position set out in the Spanish parliamentary response was “not the position that I have understood in the negotiating room”, though he would not be drawn on any detail.

“If I say that we’re within kissing distance, it's not Spain’s boot I expect to be kissing,” he told the Chronicle.

During the interview, Mr Picardo also spoke about border security, taxes on goods and potential fallbacks if a treaty cannot be agreed.

Under Schengen rules, an EU member can reach a bilateral agreement with a non-EU member to establish a local border traffic arrangement that would facilitate frontier fluidity for people resident with a given radius from the frontier, usually up to 50km.

He said Gibraltar and the UK had done significant work on this as a potential fallback, including some discussions with Spain.

But he was clear too that even this was not guaranteed if the treaty talks failed, stressing he still believed a more “ambitious” deal was possible.

“The route to this treaty does not pass through a comfortable alternative,” Mr Picardo said.

“And the reality is that we may fail to do a treaty, and we may also fail to agree a local border traffic arrangement.”

Q. What went through your mind when you saw the level of detail in the Spanish Government’s response in the Senate on Spanish presence in Gibraltar?

A. Spain is in an electoral period. I understand that there is a lot of politics on the Gibraltar issue in Spain as much as there is politics on the Spanish issue in Gibraltar. And I wasn't surprised to see that what has surfaced publicly is not what's happening in the negotiating room, but what may be happening in the inter-ministerial discussions at the Spanish level.

We’ve had a very clear position on these issues. If I say that we’re within kissing distance, it's not Spain’s boot I expect to be kissing.

Q. You’ve said this was Spain’s negotiating position, but that’s not how it was presented. They've created a level of expectation in their own parliament that surely is going to make it harder to reach a compromise?

A. I think that the way that Spanish politics works is different to the way that Gibraltar politics works.

I think on key issues, Gibraltarian politicians are monochromatic. We have one position and that position hasn't changed for generations.

In Spain, positions can be different and more fluid, because, of course, the Gibraltar issue might matter in the Spanish context, but it matters in the context of all of the politics of Spain, where you've seen positions taken which are later amortised by events and a pragmatic solution can be found, whilst there is no pragmatic way around an issue of sovereignty when you're in the politics of Gibraltar.

Q. So essentially, you expect them to have to resile from that position as set out in the parliamentary response if a treaty is to be agreed?

A. I couldn’t have put it better myself.

Q. And our position is?

A. Our position has been set out from the moment that we reached the New Year's Eve agreement and we agreed a mandate between the Gibraltar and UK governments, which has been the position which we have been negotiating. In the shorthand, no boots on the ground.

We've been very clear that there is a joint facility which is equidistant into Spain and Gibraltar, which creates a common operating space - which I think is what enables us to square the circle on these issues - and which creates the opportunity for our respective law enforcement agencies to work in partnership in a common area where they can do all of the things that they need to do.

We've said all that publicly. What I will tell you about our private position, or our position in the negotiating room, is that it doesn't deviate from our public position.

What you've seen referred to in the Spanish Senate is not acceptable in Gibraltar. Not just to me [but] I would say to almost every Gibraltarian.

I think it's understood that there is a Schengen responsibility that is shared by all the Schengen states and that Spain is the neighbour. And if we are able to do this, the advantages to us and to those around us are huge.

But we've talked constantly about doing this without crossing each other's red lines. I have no intention of crossing a Spanish red line, but I can't accept an attempt to cross ours.

Q. The unavoidable conclusion is that you’re still miles apart and that these positions are irreconcilable.

A. The position that was set out in the Spanish Senate is not the position that I have understood in the negotiating room. But I'm not going to bring the negotiation out into the open because I think that you cannot draft a good letter by committee and you certainly cannot do a good negotiation by committee.

I think it's important that the people who are aware of what is happening in the negotiating room keep to themselves how we are all trying to achieve success.

But what you've seen in the Senate statement is a positioning relating to opening gambits and might have more to do with inter-ministerial jockeying in the Spanish system than it does with where the negotiation is, as far as I'm concerned.

As we go into the final throes of this negotiation, it's all about patience and stoic calm.

There are many people in Spain who want us to do this deal. There are many people in Spain who do not want us to do this deal.

The closer we get to doing this deal, the more likely that those who don't want us to do this deal will up the ante and push as hard as possible to stop us being able to finally reach agreement.

Q. The political framework agreement is clear that Spain, as neighbouring Schengen country, will have ultimate responsibility for Schengen decisions under any treaty, irrespective of whether Frontex is carrying out the actual physical checks inside Gibraltar. Given that reality, how do you then explain to anyone outside Gibraltar our resistance to Spanish boots on the ground?

A. I think the key issue is that you’ve got to understand the psychological reality of Gibraltar politics and how that comes about. And I think Spain needs to be understanding of why the Gibraltarian rejects Spanish presence in Gibraltar in today's day and age.

It’s a product of 60 years of what I might call almost abuse, in the ‘maltrato’ sense.

For 60 years, the Gibraltarian has not seen the best of Spain. For 60 years, the Gibraltarian has been treated to constant references to Gibraltar in the negative.

We've even, within the past three weeks, been referred to as an infection by a senior representative of the Spanish opposition party.

We've seen the Spanish law enforcement agencies in Gibraltar as the instrument of the Spanish attempt not to recognise our waters and our territory.

And therefore, we have what I might call an understandable allergic reaction to the presence of Spanish law enforcement discharging executive functions in Gibraltar, because it would make it feel as if we had succumbed to the issue of somehow accepting that our territory does not start and end where we have proposed.

And that's an issue that Spain needs to carefully understand.

I think there is a desire on the part of the socialist administration in Madrid and the socialist administration in Gibraltar to get beyond those things.

But you can’t get beyond them without understanding them, what brings them about, and making people feel different about the future.

The nationalist drum is the easiest one to bang, here and there.

The opportunity that we will open for our people and for their people, and the way that we will change politics forever, is even more exciting.

But to get there, we have to understand the damage and the effect that the nationalist drum has done in the past 60 years of being banged in Spain against Gibraltar every time that they have a national issue that they want to hide.

And I want to think, I want to believe, that it is possible for us to do things in a different way and not just to confine our political generation to the same failure that previous political generations have succumbed to.

It's difficult. It's hard. But it's possible.

But it does mean that Spain has to accept that she cannot be in Gibraltar with this treaty.

Spain needs to ask itself, what have we done here, how do we fix it? Not how do we use this moment to win it in the end.

That's the reality of what we're dealing with.

And there are very many good people in the Spanish system who are trying to find a way around the past.

But there are huge number in the Spanish system who want to now win the past in the future. That's not the negotiation I'm interested in.

Q. Something else that has happened in recent days is Spain saying it wants the “smallest possible differential” between taxes on goods on either side of the border. What does that mean in practice?

A. Gibraltar's economy has never been a goods-based economy. Goods have been sold in Gibraltar, to the Gibraltar market, and we have some element of a goods trade where there is a small arbitrage.

Most things are more expensive in Gibraltar than they are in Spain. And this is the thing that has not been understood in Seville, in Madrid or in Brussels, that actually 99% of all goods categories are more expensive in Gibraltar than they are in Spain.

But if we have access to be able to sell on a retail basis to the single market, we may be able to become more attractive as our traders are able to import to sell to a larger number of people.

The deal that we're looking at is a deal that enables our traders in goods to sell retail to 520 million people in the European Union. That is worth being precise in understanding where the sweet spot is.

I'll tell you something which I can guarantee you. Gibraltar will never have the same rates of tax [on goods] as Spain. The argument that we're having at the moment is: where does the EU accept that you have a rate for transaction tax which is not going to in any way endanger the single market?

And look, anybody who wants to see this deal deliver shared prosperity needs to understand that Gibraltar, as the catalyst for that shared prosperity, needs to do well.

Q. You’ve said Gibraltar will be more secure under a treaty, even though parts of the border fence will be removed and there will be no immigration checks at the frontier. How is that possible?

A. Well, because at the moment, the physical barrier is the least effective of our controls. Effective control are BCA and Customs, and BCA and Customs are doing their work in the context of the infrastructure that we have now.

I envisage moving to different infrastructure which will be digital [and] we expect to have a lot of it. We also expect to have a lot of presence in the area.

And in the end, remember that to come into Gibraltar, or to get out of Gibraltar, you have to go through the tunnel or the runway.

So you can expect to see a lot more digital measures in place for pedestrians and cyclists at the runway and for vehicles as they enter the tunnel.

And you can expect to see a very strong security presence on where the frontier is today, which will be much more effective than what we have today, which is just wire that is routinely - I don't know whether people in Gibraltar realise this or not - cut open and people slip in and out of Gibraltar.

And every day, the Government of Gibraltar spends money repairing that fence, simply to have to do it again the next day.

I think people are more effective deterrence than wires and I expect to have constant, permanent patrols of that area which will ensure the security of every Gibraltarian.

And let me make it explicit so that your readers understand. It will secure the safety of my daughter, my two boys and everybody's daughters, boys and loved ones.

Q. You and Albares have always said ‘nothing is agreed until everything is agreed’. Why can’t you bank the things that you’re agreed on?

A. I suppose that nothing is agreed until everything is agreed assumes that a lot of things have been agreed pending final agreement. I think it's just, to an extent, a play on words, but there is a lot that is agreed which will take effect if everything is agreed.

If we don't agree everything, then the difficult situation that we will find ourselves in is whether we walk away from everything that is agreed, or we at least implement the things that are agreed, even if the great prize of the final things that might have been agreed cannot be agreed.

Q. But it’s at least possible?

A. If we don't succeed, we will walk away from each other more in sorrow than in anger. We will want to do that in a way that creates as little difficulty as possible for working people.

We might say tough things, as we negotiate, about how bad it's going to be or how bad we're going to make it for each other if things don't work.

But I think in our heart of hearts, we all want to ensure that people in Gibraltar and people in the Campo who need to see their families are able to do so as seamlessly as possible. And people who have to work on one side or the other are able to do so seamlessly as possible. And indeed, people who want to visit are able to do so as seamlessly as possible.

But that challenge is one that we should set ourselves for the day after failure, and I hope that day never comes.

Q. If it does come though, there is a potential solution to at least the practical day-to-day crossing of people who live in the area on both sides of the border. The Schengen code allows for bilateral local border traffic agreements between EU and non-EU countries and these exist elsewhere. Has that been discussed as a fallback option?

A. The Gibraltar Government and the UK Government have done a lot of work on local border traffic regulations and how potentially that could work.

But a local border traffic solution is unambitious. Let's try to do the ambitious thing first. And if we can't - and I believe we will - but if we can't, let's fall back on the local border traffic regulation solution.

But, you know, I'll be damned if I'm not going to continue to try my hardest to bring the best possible solution to the table.

I'm not going to start negotiating for a solution that's good if I can still see a route to the best solution. The route to this treaty does not pass through a comfortable alternative.

And the reality is that we may fail to do a treaty, and we may also fail to agree a local border traffic arrangement.

People in Gibraltar need to understand that the alternative to a treaty is potentially the full application of the Schengen border code with all of the massive difficulties that that would entail, and for us to do it reciprocally.

In other words, if the Schengen border code is applied to Gibraltar and to crossings from Gibraltar to Spain, the Government of Gibraltar will apply the same rules to crossings from Spain to Gibraltar. We will do that more in sorrow than in anger.

Q. And shoot ourselves in the foot by doing so, given our reliance on the cross-border workforce…

A. We will do that more in sorrow than in anger, but we will have no alternative but to do it. And we can't rely on the potential that there might be a local border traffic solution that might potentially be agreed.

Because the reality is that if these talks break down, sorrow might turn to anger quite quickly. Those who don't want a treaty may also want a very sour taste to develop very quickly.

And they would find it very easy, because if the talks fail, they'll probably fail because I will have to explain to the people of Gibraltar the things that we have found unacceptable in the context of these discussions. And then the atmosphere will become very difficult, very quickly.

I think there are certain fundamentals that we have to protect, and I can only bring back a treaty that's safe and secure. And the safety and security analysis passes through whether the fundamentals are protected or not.

And that's the Gibraltar economy, it's the safety and security of the people of Gibraltar through an immigration system that stands up to scrutiny, both in terms of the removal of parts of the frontier fence and how Schengen security is done at our entry points.

It’s complex, very complex. Complexity like never before.

I don't think any of my predecessors or any of my potential successors actually envy me right now.

I think they're all very happy with the fact that I've been the one left holding the parcel when the European music has stopped.

My job is to make them all very jealous that ‘Ode to Joy’ starts to ring again as I pass that parcel to a future generation.