There is currently much talk about how the likely extension of the Article 50 deadline affects the obligation or otherwise of holding European Parliamentary elections in Britain in May. What is the legal situation?
Scenario 1: Article 50 deadline is extended up to a date before the new European Parliament first assembles on 2 July
In this scenario, the legal situation would be that UK would still (until possible further developments) be scheduled to leave before the new Parliament takes office, so would not need to participate in the elections on 23 May as it would at that point not be scheduled to have any MEPs. Then, either:
- Brexit is confirmed during that extended period. The Withdrawal Agreement could be passed by the outgoing European Parliament, even after the elections, as, in law, current MEPs hold their mandate until 1 July 2019, so the outgoing Parliament could exceptionally be recalled in late June if required. (The treaty allows the Council to convene the EP for an extraordinary session, even though this has never been used).
- OR the UK decides during that extension to remain in the EU, in which case it would need to have catch-up elections as soon as practical as there is a Treaty obligation for UK citizens to be represented in the European Parliament.
Scenario 2: The Article 50 deadline is extended beyond 1 July
Then, the UK would be legally required to participate in the elections. The only legally watertight way to avoid this would be to adopt a protocol to the treaty providing otherwise (eg that the UK Parliament choose MEPs for a transitional period, as happens when a country joins the EU), but that would need ratification in record time by every national parliament.
If the UK simply didn’t organise elections in circumstances where it is legally obliged to do so, then there could be a legal challenge from voters arguing that they have a right to elect their representatives (or indeed from aspiring candidates) while Britain is still a Member State.
However, if it (still) did not organise elections, this would not render the newly elected European Parliament invalid – it would simply, at that point, not have any UK MEPs. (If failure by any country to elect its MEPs were to invalidate the Parliament, then any country could choose to paralyse the Parliament, and therefore the EU, simply by not organising its elections – think Victor Orban!). That in turn means that the new European Parliament, even if it does not have any UK members, can legally act.
The EU legislation reallocating the UK seats has a clause postponing that reallocation (and enabling the UK to keep its seats) if Brexit hasn’t happened by the time the new EP assembles, so there is no legal impediment at EU level to the UK electing MEPs.
In short, there are no insurmountable legal difficulties to extending the Article 50 deadline beyond the date of the European elections.
The problem is simply political inconvenience, for both sides, if European elections have to be held in Britain before Brexit is resolved, not even knowing whether the 73 elected UK MEPs will serve for five weeks, five months or five years. And if the UK is holding a referendum on Brexit, the elections could become a dry-run for that, with Brexit obviously being the dominant issue.
But if they must be held, parties will no doubt fight them. Indeed, I gather that the Greens and the Lib Dems are already selecting their candidates. There has even been an opinion poll (see graphic below) showing that Labour would come first in such an election with 37%, the Tories on 36%, UKIP 10%, LibDems 8%, Greens 5% and SNP 3%.
So, yet another Brexit uncertainty!