With the second defeat of Theresa May’s Withdrawal Agreement, the subsequent vote to reject a “no-deal” Brexit, and the proposed votes today to extend the Art. 50 period, we must consider the legal practicalities of such an extension.
Art. 50(2) provides that, once a state has submitted a notification that it intends to leave the EU, that state will leave the EU after a period of two years, regardless of whether an agreement has been reached on the terms of withdrawal. This means that parliamentary votes (or even an Act of Parliament) on ruling out a “no-deal” Brexit and/or extending the deadline for leaving the EU are of political or indicative value only. Parliament has no power to rule out a “no-deal” Brexit or to extend the Art. 50 period. The former will happen by operation of EU law unless either an agreement is reached, or the deadline is extended. Under Article 50(3)-(4), the latter can only happen following a unanimous decision of the European Council – which consists of representatives of the 27 other EU member states. An extension is, therefore, within the gift of the EU 27, not the UK Parliament.
If the Art. 50 period is extended, then the UK, as a member of the EU, must have representation in the European Parliament (Treaty on European Union (“TEU”), Art. 14). UK citizens (and citizens of other EU states resident in the UK) have a right to stand or vote. The current UK MEPs are not entitled to sit after 1 July 2019 (Treaty on the Functioning of the European Union (“TFEU”), Arts. 20 and 22).
If the UK remains in the EU after the expiry of the current UK MEPs’ terms on 1 July 2019, but does not hold new elections, then both the European Commission and citizens living in the UK will have a cause of action against the UK. Citizens have a potential claim for denial of their right to stand and vote, and the Commission has a potential claim for breach of the treaties. It is possible that, on the basis of an agreement between the UK and the EU, the Commission will refrain from enforcing its cause of action, but no such agreement can extend to citizens. Depending on the length of the extension, the UK may potentially avoid liability, however, by the simple expedient of ensuring that it leaves the EU before any claim against it has made its way through the courts.
It appears that the European Commission will only support an extension under three sets of circumstances: (1) to allow time to ratify the Withdrawal Agreement, (2) to allow additional time to prepare for a “no-deal’ Brexit, or (3) to allow time for a general election or another referendum. The reactions of a number of European leaders in the wake of the government’s defeat on Tuesday suggest that they are thinking along the same lines. The matter is complicated by the fact that European Elections are scheduled for 23-26 May. This raises the question of whether, should the Art. 50 period be extended, the UK must hold European elections.
An extension to provide time to ratify the Withdrawal Agreement is unlikely to be lengthy. Under section 13 of the EU (Withdrawal) Act 2018, the Withdrawal Agreement cannot be ratified until (a) the House of Commons has voted in favour of the agreement and (b) Parliament has passed an Act providing for the implementation of the agreement. The Agreement must also be laid before Parliament for 21 days in accordance with the Part II of the Constitutional Reform and Governance Act 2010. The chief barrier to ratification is, obviously, that the Commons have twice refused to approve the Agreement. It seems unlikely that the House will change its mind unless the Agreement undergoes changes of the sort that, the EU says, will not be forthcoming. If this hurdle were to be surmounted, however, the rest of the ratification process could, from a legal perspective, be accomplished in a matter of months.
The UK need not hold European elections if the Art. 50 extension ends on or before 1 July 2019 (13 weeks from the 29 March, the day on which the UK is currently scheduled to leave the EU). This seems to be sufficient time to allow for ratification of the Withdrawal Agreement but, given the political barriers to ratification, this may well be a moot point.
Preparing for a “no-deal” Brexit or holding a general election or referendum could take substantially longer. Sections 2-3 of the Fixed Term Parliaments Act 2011 provide that a general election can be held within a period of seven weeks. A referendum, however, will take between 10 and 22 weeks. Part VII of the Political Parties, Elections, and Referendums Act 2000 requires a minimum 10-week campaign period for referendums. The Electoral Commission has a statutory duty to test any referendum question before a referendum is held. This typically takes 12 weeks. A more detailed examination of the practical requirements for a referendum can be found here. While the authorising statute for a referendum can provide for a shorter campaign period, it seems unlikely that a referendum can be held with anything less than several months preparation.
If European elections are to be held then they must be held between 23-26 May 2019 (Decision 2018/767, per Decision 76/787/ECSC, EEC, Euratom, Art. 11(2)). The UK may be permitted to remain in the EU without electing new MEPs if the EU treaties (the Treaty on European Union and Treaty on the Functioning of the European Union) are revised (likely by addition of a protocol). This requires (at minimum) a conference of member states (TEU, Art. 48). In practice this can be arranged in a matter of weeks.
If the UK leaves the EU before 2 June 2019 then its seats in the European Parliament will be partially reallocated and partially eliminated. If the UK remains a member after 2 June 2019 then it will retain its existing seats (73) until such a time that it leaves the EU (Decision 2018/037, Art. 3(2)).
The reality, therefore, is that according to the law as it stands, it is likely that the UK must either hold European elections or seek treaty change in the event of an extension of the Art. 50 period.
Sam Fowles is a barrister at Cornerstone Barristers and advised the shadow cabinet on the extension of the Art. 50 period.
(Suggested citation: S. Fowles, ‘Extending Article 50 – Key Legal Issues’, U.K. Const. L. Blog (14th Mar. 2019) (available at https://ukconstitutionallaw.org/))