According to EU negotiation guidelines issued in April last year, Gibraltar will find itself outside any future trade deal with the UK unless an agreement is reached in advance with Spain over its status, effectively giving Madrid a veto.
Gibraltar’s deputy chief minister, Dr Joseph Garcia, described the veto clause as illegal and said its use would be challenged in court.
He said that its invocation could prompt his government to review the status of EU nationals and also to revisit an agreement guaranteeing the payment of pensions to Spaniards who worked in Gibraltar before Franco closed the border in 1969.
“We’ve taken advice from the most senior UK lawyers and our advice is that the clause is illegal and our position is that if Spain exercises a veto under that clause, we will challenge it in court – whatever that may do to the whole of Brexit,” he said.
Garcia said that Spain was trying to draw a distinction between withdrawal and transition, even though Gibraltar insists transition is part of withdrawal.
Were Gibraltar to find itself excluded from the transition and withdrawal, he added, the government might, reluctantly, be forced to reconsider the rights of both EU nationals who live and work in the territory and the 13,000 workers who cross the border from Spain every day.
“Our view is that we are then no longer obliged to allow or provide the citizens’ rights that are provided in withdrawal or in transition, because it doesn’t apply to us,” Garcia said.
“In terms of workers, it isn’t something we want to do – let me stress that. But it’s something that is an option.
“There are 2,000 EU nationals who live in Gibraltar, quite apart from the workers. Some of them obviously work here as well. Eight hundred of those are Spanish and they’ve chosen to make Gibraltar their home.
“We welcome them in Gibraltar, but if transition and withdrawal is not going to apply to us – and it includes chapters specifically on citizens’ rights and workers’ rights and frontier workers and what have you – then we would be free to do whatever we like on those elements as well.”
Garcia said that while Gibraltar did not want the negotiations to be about “vetoes or exclusions or threats or about denying people legitimate rights”, the enduring threat of the veto had brought an “element of uncertainty” to proceedings.
“We said at the very beginning – before the UK had spoken about guaranteeing citizens’ rights – that we would honour citizens’ rights already and acquired rights in particular,” he said.
He pointed out that the question of pensions for the Spanish workers forced from Gibraltar when Franco closed the border almost half a century ago had only been resolved through an agreement following three-way talks in 2006.
“The UK continues to pay the pensions to these workers,” said Garcia. “These are acquired EU rights. There are now others who’ve worked here since who will have acquired rights as well. Spain cannot seriously put us in a position where we are forced to look into these areas, which are areas – I stress once again – where we don’t want to go.”
The negotiations, he added, “should be about lowering the temperature, sitting down and ensuring a sensible, orderly and well managed Brexit, because it’s in both our interests”.
Residents of Gibraltar, which was captured by an Anglo-Dutch fleet in 1704 and ceded to Britain in perpetuity nine years later under the treaty of Utrecht, voted overwhelmingly against Brexit. Up to 96% of voters cast their ballots in favour of remaining within the EU.
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