DELAYING BREXIT – WHAT WOULD IT MEAN FOR THE 2019 EUROPEAN PARLIAMENT ELECTIONS?

What is the problem?

The United Kingdom is due to leave the EU on 29 March 2019, two years after the date of the Article 50 letter. The next European Parliament (EP) elections are to be held a few weeks later, on 23-26 May 2019.

Under the terms of Article 50, a departing Member State can request that the deadline for negotiations is extended. If the withdrawal agreement presented to the Westminster parliament this autumn is rejected by MPs, the government will face a choice between trying to amend the deal, or appealing to the electorate in the form of a new referendum. In either scenario, for practical reasons, there would be insufficient time to change course without an extension to the Article 50 deadline.

Some commentators have suggested that the EU-27 would be unwilling to agree to an extension. From our discussions, however, the real risk is not an absence of the political will to help the UK to navigate such a scenario, but rather a technical objection to the possibility that the UK would have to stand MEPs in the elections in late May 2019, only to leave the EU at an unspecified time shortly afterwards.

That problem is a legal one: if Article 50 is extended beyond the date of the European Elections in May 2019, the UK will be under a treaty obligation to hold elections to the European Parliament whilst it is a Member of the EU.

Article 50 states:

  1. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

A very short extension to Article 50 would not cause difficulties. If, for example, it was necessary to delay Brexit by a few weeks to tidy up loose ends in the withdrawal agreement, the UK could still avoid participating in the elections. But if the deadline falls after 23rd May, the UK will be legally obliged to participate in the election. The crunch moment then comes in early July 2019, about 6 weeks after the close of polls, when the new House has to assemble.

This gives rise two further problems:

(i) MEPs are elected for 5 year terms. It is difficult to conceive of any extension to Article 50 which would exceed the 5-year mandate of the next parliament. If a country headed for the exit door elects members of parliament whose term would outlive its membership of those political institutions, could those MEPs, once elected, be removed on the date of their country’s departure? Here, at least, there is a clear precedent. In 1985, the MEP representing Greenland left the EP on the same date as Greenland’s departure from the EU (technically, its departure from the part of Denmark inside the EU).

(ii) decisions have already been taken to re-structure the EP when British MEPs leave, and a number of other Member States stand to benefit from the re-allocation of some of the UK seats. If the Article 50 deadline should be extended beyond the date of the 2019 elections, these plans will have to be postponed.  The legislation in question makes specific provision for the new allocation to come into effect only after the UK’s departure (even if this is in mid-term). This disruptive effect may deter some member states from granting an extension.

 

How is the European Parliament planning to restructure to take account of the UK’s departure?

The European Parliament has the formal right of initiative on its own composition, though the final decision is taken by the European Council with the consent of Parliament. At its February 2018 plenary session the European Parliament voted to decrease the number of MEPs from 751 to 705,  following the planned withdrawal of UK MEPs. This would leave 46 of the UK’s current 73 seats vacant and redistribute the remaining 27 seats among the member states on a basis that will compensate for existing anomalies in representation, so that Ireland, for example, would go up from 11 to 13 seats, and a number of other Member States would also gain seats. No member state would lose a seat.

 

What will happen to the UK MEPs if the UK leaves the EU on 29 March 2019?

The current UK MEPs will cease to be MEPs on the date of departure, currently envisaged for 29 March 2019.

 

What does the Transition Period mean?

The provisional agreement on a 21-month transition period does not extend the UK’s membership of the EU. The UK will still have formally left the EU on 29 March 2019 – the transition simply allows some of the elements of membership to persist for a finite period while new permanent arrangements are being put in place, but without UK representation in any of the EU institutions.

 

What would the reaction of the EP be if Article 50 is extended?  

Regarding the European Parliament’s position on Brexit and the forthcoming elections, its first resolution of 5th April 2017 stated:

  1.  Reiterates the importance of the withdrawal agreement and any possible transitional arrangement(s) entering into force well before the elections to the European Parliament of May 2019;

So the European Parliament may not be in favour of delaying Brexit. However, that would be a political decision taken by the European Council, as provided for by Article 50. A decision on the part of the 27 to extend Article 50 would automatically postpone the adjustment of the numbers of seats per Member State.

However, the EU is unlikely to want the UK to participate in 2019 European Parliament elections if the UK is set to leave anyway, even if there was unanimous agreement to extend Article 50. Nor would they want to see the UK appoint another Commissioner. So what other options are there?

 

Could the UK simply refuse to participate in the election?

In the event that Article 50 is extended, there is likely to be significant political pressure in the UK to sidestep an election which could be seen by some as a re-run of the referendum, or an opportunity for the electorate to pass judgement on the progress of negotiations with Brussels.

One scenario would be that Britain simply does not hold its part of the European election, in breach of the treaty, but with the tacit acceptance of the others.  

However, that would no doubt give rise to a legal challenge (e.g. by citizens demanding their right to be represented and to vote), and the Court would likely order the UK to hold its elections as soon as feasible – which might, in a highly anomalous and controversial way, “gain” a couple of months with its MEPs only taking up their seats later (though maybe in time for the July constitutive sitting).

So, in the event of extending the negotiating period deadline beyond the European elections, the UK is likely to have to participate in them.

 

Observer MEPs?

There has been no official mention of observer status for the UK, but could this offer a solution?

Alain Lamassoure, a French EPP member, has already suggested that UK MEPs switch to observer status. “Can we accept that a European law which doesn’t apply to a country that is leaving us be adopted by a majority obtained thanks to representatives of this country, against a minority of countries to which the law will apply?” he has said. This would mean that MEPs would able to speak in committee and political group meetings but could not vote.

The analogy for such an arrangement is what happens when a country joins the EU. Brexit can be seen as the reverse process. It is conventional for countries acceding to the European Union to send a number of Observers to the European Parliament in advance. The number of observers and their method of appointment (usually by national parliaments) is laid down in the joining countries’ Treaties of Accession. They can attend debates, but not vote.

For example, prior to accession, Bulgaria had 18 observer MEPs, Romania had 35, and Croatia had 12. These observers were selected from government and opposition parties as agreed by the countries’ national parliaments, and then became full MEPs upon accession pending the holding of European elections in their country.

However, this arrangement is legally feasible only because treaty provision is made for it (in the country’s Treaty of Accession).  If Brexit is delayed because there is not yet a Withdrawal Agreement, then there is no legal provision for this, and a change to the treaties would be required.

 

Observers after Brexit?

This is not the scenario we are considering, but it is worth noting that in the event of UK departure, the EP could itself make provision for Observers from the UK as a non-EU state, for instance during the Transition period. It unilaterally created Observer status simply by amending its own Rules of Procedure in 1990 to cater for East German representation following German unification. The provision is still there (Rule 13) to cater for accessions, but could be amended. Similarly, a ratified Withdrawal Agreement could make specific provision for observers for a post-Brexit transitional period or in the event of the Withdrawal Agreement setting a later date for Brexit.

 

Six options to consider

 

1) Elect UK MEPs as normal in the 2019 elections, postponing the EP restructuring plans and ejecting them when Brexit actually happens.

Pros:  This is the legal default situation if Brexit has not happened by May 2019. While it would undoubtedly be criticised, it would be relatively straightforward to administer, and EP restructuring would only be postponed for the period of the Article 50 extension – which is likely to be significantly shorter than the full 5 year parliamentary term.

Cons:  Arguably, a wasteful use of resources and effort if the UK is only going to be a member state for a few more months after the election. In the UK, the election would likely re-kindle the referendum debate, which the government and others would seek to avoid. Restructuring of the EP would have to be postponed.

 

2) Seek a political understanding that the UK would not participate in the elections, in violation of the treaties.

Pros:   This “nod and wink” solution would perhaps be granted by other national governments on the understanding that we would either be out within a short space of time (or alternatively, in the event that the UK changed its mind about leaving, it would hold an election at a later date).

Cons:  As explained above, there is a significant risk of legal challenge. EU governments would be reluctant to explicitly endorse something that is probably illegal, and they would not be able to stop citizens bringing a legal challenge.

 

3) Do not stand UK candidates in 2019, but allow existing UK MEPs to stay on as observers until the date of Brexit.

Pros:  Election of fresh MEPs avoided. Restructuring could go ahead.  

Cons:  No legal provision exists for this, and the same caveats about the UK unilaterally deciding not to stand candidates that are explored above apply here: the risk is that the ECJ would rule that elections were obligatory. Setting aside these legal considerations for a moment, the UK’s current cohort of MEPs could in theory be kept in place if the EP could be persuaded to create Observer status for them. They would not be able to vote, nor speak in the chamber. This would require a change to the Rules of Procedure of the EP, adopted by an absolute majority, and also survive any legal challenge in the ECJ. Given that the previous MEPs include many UKIP MEPs who may revert to the pledge to sabotage the work of the EP, such a proposal would not be universally popular, and so the EP’s consent to such a novel arrangement could not be taken for granted. 

 

4) Elect UK MEPs as normal in 2019, postponing the EP restructuring plans, but  on the understand that they will not take up their seats (the ‘Sinn Fein option’).

Pros:  Assures the 27 that the UK MEPs elected will not be active, unless the UK reverses its decision to leave.

Cons:  While this is conceivable as a political deal, it would be difficult to make it binding: any elected MEPs would have the right to take their seats, and could choose to do so at any point (as indeed Sinn Fein MPs could do in the context of the Westminster parliament). So to give this legal force there would need to be treaty change. The ‘simplified procedure’ could not be used as it only applies to amendments to Part Three of the Treaty on the Functioning of the EU (internal policies). National ratification would be needed in every member state.

 

5) Appoint (i.e. select rather than elect) fresh observer MEPs in 2019, removing them when the UK leaves.

Pros:  The election of new MEPs would be avoided, and any political opposition to the existing cohort of MEPs remaining in place as Observers could be sidestepped by appointing neutral figures. EP restructuring could go ahead.

Cons:  As above, there is no legal provision for this. It would require a treaty change (with the simplified procedure not available).

 

6) Don’t stand UK candidates in 2019, removing the legal obligation on any country in the UK’s situation to stand MEPs in elections.   

In theory, it might be desirable to address the UK’s situation directly in law, creating special arrangements for any country that found itself in the UK’s position in the future. This might stipulate that a Member State which had triggered Article 50 and was in the process of negotiating its departure from the Union would not participate in European Parliament elections and would not send a Commissioner to Brussels.

Pros:  Provides simplicity and legal clarity that a country in the process of leaving the EU is not required to participate in EP elections. EP restructuring could go ahead.

Cons:  No legal provision exists for this. It would require treaty change, needing ratification by all Member States.

 

Conclusion

There is no straightforward solution to the problem outlined at the start of this paper. Of the six options explored above, the first would carry political risk, the second and third would carry legal risk, and options 4, 5 and 6 would require treaty change.

The idea that the treaties could be re-opened to establish new rules between now and the EP elections in May 2019 is not realistic. Even if the political will to do so existed (which, given the EU’s other priorities, is unlikely), there is no time for ratification by national parliaments.

The reality is there is no easy way to avoid holding EP elections in the UK if we are still in the EU in May 2019.

The simplest way forward would be to hold elections as normal, and then to remove UK MEPs on the date of the UK’s departure. The EP’s restructuring plans would be postponed, but almost certainly not for 5 years as some have feared. Significantly, provision has already been made by the European Council for just this eventuality, demonstrating that thinking is already taking place at the political level about how to respond in the event that the UK’s departure is halted or postponed.  

An alternative would be for the UK to seek a political agreement not to participate in the elections. In order to secure support for such an agreement, the UK would have to be prepared to respond positively to any subsequent ruling of the ECJ about the legality of refusing to hold elections.

The UK government might conclude that by the time such a challenge was heard, it could persist in its refusal to hold elections if there was only a short period of time remaining before the date of exit. However, any suggestion that the UK was planning in advance to ignore such a ruling would fatally undermine the chances of reaching agreement with the 27. The question for all member states would be whether an attempt of this kind to circumvent the requirement to hold elections was, in the long run, worth the effort involved.