UK can delay Brexit without holding Europe elections, say lawyers
Legal opinion could remove one obstacle if Britain seeks to stay in bloc beyond May vote
Britain can extend its EU membership beyond summer 2019 without undermining the assembly, lawyers argue
Britain can extend its EU membership beyond the summer of 2019 without taking part in European elections or undermining the European Parliament, lawyers have advised the assembly.
Although contentious, the opinion from the European Parliament’s legal service potentially addresses a significant obstacle to Britain asking to delay Brexit beyond July 2, the inauguration date of the new assembly following the elections due in May.
“The possibility for the European Parliament to be validly constituted following the 2019 elections would not be affected by a potential failure by the UK to organise elections,” the paper states, according to a copy leaked to the Financial Times.
Without elections, the UK’s existing MEPs would remain until the new parliament was put together on July 2. In the new assembly, Britain would not have any seats. The other member states would have the same number of MEPs as now, with the chamber being reorganised only once Britain had left the EU.
Senior EU officials believe Britain will seek to extend the timetable for its departure, scheduled for March 29, because it will run out of time to approve an exit deal or pass all the legislation needed for ratification. The Brexit deal Theresa May, Britains’ prime minister, negotiated with the bloc was overwhelmingly rejected by the UK parliament on Tuesday.
If the EU27 granted an extension request, Britain would potentially need to take part in the May elections. That possibility has been a big factor in considerations of the length of any extension and is also a constraint on those campaigning for a second referendum in the UK, given the time needed to organise and legislate for such a vote.
But some lawyers at the European Commission and European Council are sceptical that Britain could avoid electing MEPs without fatally undermining the authority of the new parliament and the subsequent decisions it would take, including the scheduled approval of a new European Commission in 2019.
One senior EU diplomat said it would be “unthinkable” that Britain could still be a member state without holding elections and sending MEPs to Strasbourg. “That would bring the risk of an illegally composed European Parliament,” the diplomat said.
Another senior EU official said there could be some “flexibility at the margins” but that officials were reluctant to “run the risk of an EU institution being constituted improperly”. Curbing a citizen’s right to vote “is not who we are”, the official added.
Given the political importance of the decision, the views of EU leaders are likely to be crucial in deciding on the approach.
One cumbersome route under consideration is to change the primary law of the EU to create an election waiver for the UK — a mini-treaty change that would need to be approved by all national parliaments in the EU.
“In some of the key member states, senior officials believe that if the European Council wants to give the British an extension beyond July 1, the election issue could be solved in a one-page protocol that could be ratified relatively quickly,” said Charles Grant of the Centre for European Reform. “This would mean the British would not have to hold elections themselves.”
The advice to parliament, first drafted in 2017 and recently reconfirmed to MEPs, says that the EU treaties require the assembly to meet a month after the elections, and note that “there is no rule hindering” the parliament being constituted “without all seats having been allocated at the time of the first sitting”.
The advice does not specify what would happen if the UK does not leave the bloc, but many officials assume that it could in that case hold elections at a later date and take up its seats.
Placing the consequences of non-compliance on the UK rather than EU, it argues that the failure of a member state to uphold its legal obligation to hold an election “cannot amount to an absolute bar to the regular functioning of the [parliament]”.
If Britain failed to hold an election, it could potentially be sued by the commission or by citizens for failing to meet its treaty obligations and disenfranchising voters. But such a case could take months to work through the courts.