ANALYSIS: What does the new Gibraltar-Brexit deal really mean?

The “EU27 has endorsed the Withdrawal Agreement and Political Declaration on the future EU-UK relations”, tweeted Donald Tusk, the President of the European Council, but “no one has reason to be happy”.

"This is the best deal for the UK, the best deal for Europe, this is the only deal possible", said European Commission President Jean Claude Juncker. The last minute Gibraltar crisis had been fixed, somehow. Theresa May insisted “the position of the UK on Gibraltar has not changed and will not change” but in Madrid, her Spanish counterpart Pedro Sánchez (PSOE) was victorious on TV, talking of a "historic triple shield" and a "great diplomatic victory", adding “we all lose with Brexit, but with Gibraltar, Spain wins”.

READ MORE: 

• Spain strikes deal with Britain over Gibraltar
• Spain demands written UK promise on Gibraltar veto
• ANALYSIS: Between The Rock and a Hard Brexit

Spaniards gaze over to The Rock as an image is projected onto it during Diamond Jubillee celebrations. Photo: AFP

The previous Sunday, at a rally for the regional election campaign in Algeciras, across the bay from Gibraltar, PP leader Pablo Casado had thundered against Mr. Sánchez, calling him a “traitor” for selling out on the Rock, and saying it should be Spanish. This Sunday, the Prime Minister went as far as to say Spain was now in its “strongest” position “for decades” as regards negotiations of Gibraltar issues with the UK, a situation that would even allow “talks about everything, including the issue of sovereignty”. Sovereignty? The Chief Minister of Gibraltar, Fabian Picardo, shot back in his own statement: “We are not interested in any dilution of our sovereignty, we are not interested in allowing for even the remotest concession to Spanish sovereignty, jurisdiction or control”.

In the UK, the Sunday front pages headlined a win for Spain: the “British were forced to give Spain a veto” (Daily Mail), “May [is] accused of selling out with Spanish veto” (Telegraph), a “backlash over concessions to Spain” (Independent), or “UK agrees to Spain’s demands” (Observer). In Spain, there was front-page recognition a deal had been done and Brexit unblocked but the right-wing press railed against Mr. Sánchez for the lack of legal guarantees: El Mundo wrote “Sánchez gives way and unblocks Brexit without including Gibraltar in treaty”, and ABC and La Razón that the deal “has no legal value”.

“No legal value” was also the chief argument of the opposition Popular Party (PP) and Mr. Picardo, on the same side, at least rhetorically, for the first time in a long while. "Pedro Sánchez and Spain will be left with political declarations that mean nothing in the face of the legal texts", said the Rock’s ruler: “pieces of paper that will have no legal effect and which will not in any way condition our future”. PP leader Pablo Casado described the Spanish PM’s efforts as “humiliating”, a “historic failure”, slamming the socialists for wasting an opportunity his party had set up before being ousted from government in the motion of no confidence.

Spain’s Foreign Secretary, Mr. Borrell (PSOE), tweeted on Sunday evening that “whatever Fabian Picardo and others might say, the reality is that the agreements between the European Union and the United Kingdom in relation to Gibraltar need the approval of Spain”. On the radio on Monday morning, he said Spain would have “the last word” and added that if all of the parties to a treaty signed it with a certain interpretation, that was the interpretation, “does that not have any legal value? What is all this about it not having legal value? […] before any court, this interpretation is what there is”. At an event in Madrid, Heiko Mass, the German Foreign Secretary said "Of course it is a legally binding document".

On Monday afternoon, though, Mrs. May, speaking in the Commons, only increased the confusion by making Mr. Picardo’s words her own, telling MPs: “The legal text of the draft Withdrawal Agreement has not been changed. That is what the Spanish government repeatedly sought but they have not achieved that”. So a British Prime Minister has now told parliament the legal text—the Withdrawal Agreement, not the additional letters over the weekend—has not been changed, which is a qualitative step up from Mr. Picardo’s harangue to the Rock on Gibraltar TV, because everybody wants to know who would refer back to which text in the future. Gibraltar also issued a new statement, which included the line: "the document that Mr Borrell refers to is a political document of zero legal value".

On the radio on Tuesday morning, Juanma Moreno, the PP leader in Andalusia—still in the middle of the regional election campaign—told the interviewer he agreed, on balance, with Mr. Picardo. A letter from the UK’s permanent representative to the EU, Tim Barrow, dated November 25th, says the UK “will negotiate the future agreements implementing the Joint Political Declaration on behalf of all territories for whose external relations the United Kingdom is responsible, including Gibraltar”. The European Council declaration on their interpretation of Article 184, concerning those future relations, states “Gibraltar will not be included in the territorial scope of the agreements”.

The British Embassy in Madrid said the UK has “always held that Article 184 is without prejudice to the territorial scope and form of future agreements with the EU”—i.e. Gibraltar is not automatically included in that scope—but that “as a matter of firm UK policy, we will only agree a deal on the future which works for the whole UK family and we will negotiate a deal that works for Gibraltar”.

So now we effectively have London, Gibraltar and the Popular Party versus the socialist government in Madrid, Berlin and the EU. The first group believes Saturday’s letters have no legal value and that Gibraltar will be included in the future negotiations, the second that they do and that Gibraltar won’t. When the time comes to talk about some specific issue, if one party thinks what was signed over the weekend is legally binding and the other thinks it is not, where does that leave us?

Matthew Bennett is the creator of The Spain Report. You can read more of his writing on Patreon, and follow him on Twitter. Don't miss his podcast series with weekly in-depth analysis on Spain.