Thursday 14 March 2019

Extension and elections: We need to talk about Article 50

Professors Catherine Barnard and Steve Weatherill, Universities of Cambridge and Oxford respectively

Its 261-word text is now infamous. It is brief, at times laconic, and leaves many things unsaid or uncertain. So, what does - and doesn’t - Article 50 permit?

Let’s start with the easy stuff.  Article 50(3) says that the two-year period can be extended by the European Council acting by unanimity (all 27 EU heads of state or government do not have to agree, it means only that none must disagree; abstentions do not block unanimity). Subject to the intended purpose and length, it is thought that the EU would say yes to an extension. Importantly, the UK would still be a Member State during this extended period.

An extension might give the UK more time to convert the Withdrawal Agreement into a statute, the Withdrawal Agreement Bill (WAB). This assumes, of course, that the Commons has approved Theresa May’s ‘deal’, comprising the Withdrawal Agreement and the Political Declaration on the future relationship. So far it has been rejected twice (MV1 and 2); it may still get through on its third or fourth iteration.

If Parliament rejected Mrs May’s deal, an extension would provide time to prepare the primary legislation and the remaining 600 or so Statutory Instruments needed on the statute book for a no-deal Brexit. It might too offer space for a General Election and/or referendum, although the political obstacles are high. The EU may be more likely to offer an extension in the latter scenario.

There are several alternative scenarios for how long an extension may last:

- To the end of May, just before the European Parliament elections, to allow enough time to get the WAB through
- To the end of June, just before the new European Parliament sits, again to get the key legislation through (this is the basis of the government’s motion of 14 March 2019), or to the start of September when the European Parliament starts to make some key decisions
- To the end of the year, to ensure that the legislation is passed in the UK
- To the end of 2020, which is the end of the EU’s current budgetary period (and which also coincides with the planned end date of the transition period under the Withdrawal Agreement)
- To the end of 2022, by when the shape of a trade deal for the future might have become clear, so the UK could move from existing membership to the new arrangements, possibly via a further period of transition. This would avoid the need for the Northern Ireland backstop since the UK would remain a Member State, although its fate after 2022 would depend on the terms of the deal struck (if any). The UK would remain a full member of the EU institutions and so avoid the ‘vassal state’ status envisaged by the arrangements for transition if the Withdrawal Agreement comes into force.

If a short extension is chosen, say three months, can Article 50(3) be used to extend the Article 50 period again, and again? We believe the answer is yes, for the simple reason that Article 50 does not prohibit it. Nor did the Court of Justice, in its Wightman decision, hint at any objection to serial extensions.

The UK would need to ask the European Council for an extension, and the member states would need to act unanimously to agree it (again abstentions do not block unanimity: Art 235 TFEU). Most likely, in order to provide a sense of political authority, this could be agreed at the next European Council summit on 21 March. Can the European Council lay down conditions on the extension? Article 50 is silent on the point. Our view is that Article 50 should be read flexibly to allow for the possibility to include particular ad hoc adjustments needed to ensure that extension is feasible. This would leave space for the political process, which seems likely to require some commitments by the UK about what it wants to achieve during the period of extension.

In domestic law, Section 20(1) of the EU(Withdrawal) Act 2018 provides that exit day is 29 March 2019. Section 20(4) allows that date to be changed by regulations. As the government’s explanatory notes acknowledge: “A change in the date is possible under Article 50(3) of the TEU. Regulations made under subsection (4) would be subject to the affirmative procedure.” Using this procedure will not be straightforward for Westminster politicians. However, if/when MPs support a motion to extend the Article 50 period, it would be difficult for Parliament then not to provide the means, most obviously by approving an order changing the designated exit day.

Elections for the European Parliament will take place at the end of May. A European Council Decision (2018/937) recognises the possibility that the UK will still be a Member State and makes provision for British MEPs accordingly. So what would happen if the UK is still a Member State because Article 50 has been extended? UK nationals, and EU nationals living here who have a Treaty-based right to vote in EP elections, should surely still be represented, not least because the EU is based on the rule of law, which includes respect for democracy. (See also the summary of the European Parliament’s legal service opinion, in the Annex).

The terms of an extension could include a commitment by the UK to hold elections in May. While this looks possible on paper, the politics at Westminster are potentially toxic. UK legislation would be needed for elections to be held: Section 4 of the European Parliamentary Elections Act 2002 - due to be repealed by Schedule 9 of the EU(Withdrawal) Act 2018, but that part of Schedule 9 is not yet in force - would require an Order, approved by both Houses to appoint the day for those elections. There may need to be other orders, such as designation of returning officers etc. The UK will have to act quickly – by some time in April – since other Member States which have received the UK seat allocations will need to adapt their processes.

Deferring the elections until the way ahead is clearer would suit the UK, but the EU needs a properly constituted European Parliament in place to operate on a secure constitutional basis. Outright refusal by the UK to hold elections would not mean that the Parliament’s actions were robbed of validity, for that would be to grant a state acting in breach of the Treaties a power to paralyse the workings of the EU.

Could the EU itself agree to extend the UK’s status as a Member State without the need to hold EP elections here in May? The Treaties direct that the Parliament’s members ‘shall be elected for a term of five years by direct universal suffrage in a free and secret ballot’ (Art 14(3) TEU; also Art 223 TFEU).  Could the European Council could agree to British MEPs continuing to sit without the need for election in May?  In our view, this would not contradict Article 14(3) TEU: those MEPs have, after all, been elected for a term of five years by direct universal suffrage in a free and secret ballot – just not in May 2019, but rather in 2014.

This, we suggest, could be agreed within the context of the negotiations. Article 50 has, after all, already been read flexibly and creatively to deal with matters not strictly solely concerned with the issues connected with withdrawal – witness the Irish backstop, which is clearly directed at the future post-withdrawal.

In similarly creative vein, an extension of the mandate of the existing British MEPs could be agreed in the context of negotiating the extension which is explicitly foreseen by Article 50(3). This would avoid the need for elections even where the UK, as a result of an agreed extension to Article 50, remains a member of the EU after June 2019. This idea would certainly increase the available political options. At present, the EU does not accept this premise but others are beginning to suggest something along similar lines – including the British Advocate General Eleanor Sharpston.

It remains possible for the UK to unilaterally withdraw (or revoke) the notification made pursuant to Article 50. An Act of Parliament would repeal the EU (Notification of Withdrawal) Act 2017, and the EU must be duly notified. The Wightman decision of the ECJ makes clear that the UK can do this independently and unilaterally, without the agreement of the EU, provided the notification is unequivocal and unconditional. Mrs May has consistently said she will not do it. But the law allows it, and it is still available as a parliamentary option.

Barnard & Peers: chapter 27
Photo credit: WWF EU

Summary of European Parliament legal service opinion on Brexit and EP elections
(on file with blog editor Steve Peers)

In September 2017 (before the European Council adopted its decision on allocation of EP seats) the EP legal service gave its opinion on two questions: (a) could the European Council adopt a decision on allocation of EP seats not including the UK, if the UK was still a Member State when the decision was adopted? and (b) if the UK has not left before the EP elections, can the EP meet without the UK seats?

On point (a), the legal service said that the European Council could allocate seats to 27 Member States only, given that the UK was due to leave on 29 March 2019. However, it could also take account of the scenario if the UK was still a Member State, due to extension of membership, for instance. In practice, this is what the European Council did, on a proposal from the European Parliament (which also needed to consent to the decision).

On point (b), the legal service says that as long as the UK is a member of the EU when the elections to the European Parliament are held, the UK must hold EP elections. However, in the event that the UK failed to meet its obligations, the EP could still meet validly.

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