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EU law does not compel UK to participate in European Parliament elections

28/03/19

Lord Anderson of Ipswich KBE QC, Marie Demetriou QC and Emma Mockford of Brick Court Chambers have today published an Opinion, along with two other QCs and Professor Piet Eeckhout, Dean of the Law Faculty at UCL, grappling with the controversial issue of whether the UK need hold European Parliamentary elections in the event that there is any further extension of Article 50 beyond April 2019.

Many key figures in the Brexit process have appeared to assume that such elections would be inevitable if there is a further extension. Indeed, the Prime Minister reported to the House of Commons just last week that any further extension of the Article 50 notification period “would certainly mean participation in the European parliamentary elections”. 

However, the Opinion published today concludes that this is wrong as a matter of law. Its authors dismiss concerns that a failure to hold elections in the UK could invalidate subsequent EU laws. They proceed to examine the application of EU electoral law, and the principle of representative democracy, to a departing member state whose citizens will not be affected by what the European Parliament decides. And finally, they suggest some practical mechanisms, falling short of outright treaty change, by which an extension could be assured without the need for European elections in the UK at all.

This is a matter not just of legal disagreement, but – as identified by no less a figure than Eleanor Sharpston, a serving British member of the EU’s Court of Justice – of huge practical significance, given that:

  • The prospect of participating in European elections is viewed with intense distaste by many MPs. Campaigning to elect MEPs for a nominal five-year term, almost three years after the vote to leave the EU, is seen — particularly in strongly Leave areas — as something to be avoided at almost any cost.
  • Even if the political will could be found to hold the elections, it will only be possible to do so once preparations have been made. These include the giving of notice by returning officers, which, under UK law, must be done by 12 April for an election on 23 May.
  • If the UK and EU27 maintain the rigid view that extension past April 12 requires European elections to be held, and if such elections are either politically impossible or precluded by the passage of time, the consequences could be dire.
  • In particular, the refusal of a further extension to the Article 50 period on this ground would dramatically narrow the UK’s options and could help precipitate a no-deal Brexit.

The opinion is here.

An article by David Anderson on the same subject also appears in The Times today, and is here.