Extending the Brexit negotiation period beyond the European Parliament elections – not as hard as you think
Jon Worth / Dec 2018
On 11 December Theresa May faces her moment of truth – trying to get her Brexit deal past the “Meaningful Vote” in the House of Commons. European Council President Tusk has underlined once more that the deal on the table is the only deal available – reject that and the UK has to go for either No Deal Brexit, or no Brexit at all. Yet both sides know that No Deal is a catastrophe. More so for the UK than for the EU, but painful nevertheless for the EU side too (and especially Ireland, France, Belgium and Netherlands).
One way out of this impasse would be an extension to the negotiation period foreseen in Article 50, one presumes to allow a People’s Vote (a second referendum) to take place, although the same route could be used simply to avoid a No Deal Brexit.
The UK has no general referendum law, and the constitutional experts at University College London reckon a referendum takes 22 weeks to organise. At the time of writing we are less than 17 weeks ahead of Brexit day. The day of the vote in Parliament, just 15. Any debate about a referendum UK side has to be mirrored with a debate about extending Article 50 on the EU side.
Yet whenever I raise the issue of extending Article 50, I am hit with a question in return: what about the European Parliament elections, due 23-26 May 2019?
A very short term Article 50 extension - a matter of weeks beyond 29 March 2019, but Brexit still happening on a date before the European Parliament elections starting 23 May - might just about be enough to deal with a last minute hiccup, but that is not going to be enough to allow time for a referendum.
However an election where the UK is a Member State of the EU on election day causes all sorts of headaches - German law for example says anyone voting in, or running in, the European election must be a EU citizen on the election day. If Brexit were to legally happen any time after the EP elections, even a day after, Brits resident in Germany would have the right to vote and to run for the EP. And were Brits in Germany to have this right, what about Brits in the UK...?
My conclusion is hence that any Article 50 extension would have to be either a couple of weeks, or - more likely - for a good few months, well beyond the European elections. If you are going to extend past the EP elections, then better give yourselves some proper time for the referendum and the campaign. Brussels does not want Brexit overshadowing the European Parliament Elections either.
But that means organising a European Election in the UK.
This is not as hard as you might think.
The UK has a history of calling snap elections. The 2017 General Election in the UK was all organised within 7 weeks and 2 days. 7 weeks and 2 days ahead of 24 May 2019... is 3 April. After the timetabled Brexit day. The UK's Electoral Commission has already also set aside a budget to organise such a vote, much to the chagrin of some Brexiters. So no problem UK side. Likewise parties had to scramble for candidates in 2017 - it would also be the case here. Finding people ready to run (not least from among the ranks of Remain people, and among EU-sceptics) would not be hard.
Likewise on the EU side the administrative hurdles are not too onerous. The rules that reallocated the UK's MEPs to other countries make it explicit that these changes only happen if and when the UK leaves the EU. Page 7 of this Decision (PDF), the important part here:
We also have precedent for changing the composition of the European Parliament during a parliamentary term.
Ratification of the Treaty of Lisbon (that enlarged the European Parliament to 751 MEPs) was delayed due to the second referendum in Ireland. That meant that the extra 18 MEPs were only able to take up their seats on 1 December 2011, 2 years and 7 months after the 2009 European Parliament elections. This article explained how it all worked out.
The same could work for UK MEPs in the European Parliament post-2019. Elect the 73 MEPs for the UK, and those MEPs would then sit until the date that the UK leaves the EU (if that ever happens). Only then would the extra MEPs from other Member States (Netherlands gets 3 more, Ireland 2 more etc. - all explained here) step in.
I have also heard the argument made that such an election in the UK would result in a whole slew of EU-sceptics and the populist right entering the European Parliament from the UK, and hence such an election should not happen.
This argument I find spurious. You cannot not hold and election because you might dislike the result.
If the UK has not left the EU by late spring 2019 it is obvious that EU citizens with UK passports should have the right to vote in the European Election, and it is the choice of those voting who they choose to represent them (this is what happened in 2014). During the Article 50 period the UK is still a Member State of the European Union, and not holding a European Election in a Member State of the European Union would be a democratic scandal.
The same would then happen in the European Commission - the UK would get a Commissioner up until the day that it leaves the European Union. The successor to Julian King would be chosen in the autumn of 2019 if the UK is still in the EU at this point.
It would no doubt be an unusual European Parliament election in the UK. But the organisational hurdles in the way of such an election are relatively easy to surmount (and they are nothing in comparison to those a No Deal Brexit throws up). If and when the UK realises it is incapable of leaving the EU on 29 March 2019, planning for this is going to have to swing into action.