The other May problem

Opinion piece (Tortoise)
01 February 2019

Many officials believe we will need – and could easily get – an extension to the March 29 deadline for Brexit. But, with European elections looming in May, this may prove far trickier than we imagine.

British politics is currently fixated with the terms of our departure from the EU and whether or not MPs will ratify Theresa May’s Withdrawal Agreement. Either way, officially, the UK has agreed to leave the EU on March 29.

But this week Jeremy Hunt, the foreign secretary, publicly stated what many officials believe in private: the deadline may have to be pushed back.

The issue is that the “Article 50” period – the two-year ticking clock that started when Britain told the EU it was leaving – will be extended because, even if the Withdrawal Agreement is ratified swiftly, more time will be needed for Parliament to pass implementing legislation.

However, the UK cannot unilaterally extend Article 50. Extension requires the consent of all 27 member-states of the EU.

In practice, a short extension for a good reason would not be a problem. It is not in the EU’s interest to be explicit on this point. The UK is an essay-crisis country. It makes decisions only when right up against a deadline. The EU likes to use the pressure of a countdown to make deals.

But extending Article 50 for a month or so, either to allow for ratification of an agreement that has broad parliamentary support or to pass implementing legislation, would be fine.

Indeed, even if the UK did decide to jump off the cliff and opt for “no deal”, an Article 50 extension would still be likely in order to buy more time for preparations on both sides of the Channel.

But what if the UK wanted to extend it for longer? There is a problem: namely, the European Parliament.

The problems

Between May 23 and 26, hundreds of millions of EU citizens will get a vote in the European elections, choosing their representatives to this continental congress. The new Members of the European Parliament (MEPs) take their seats on July 2.

During any Article 50 extension, the UK will still be a member of the EU. If it leaves before July 2, its existing batch of MEPs would be able to represent them. But if the extension takes us beyond the inauguration of a new European Parliament, the UK would be required by EU law to elect new MEPs.

If the UK were not to do so, some EU officials argue it could provoke a legitimacy crisis. Any legislation passed by the Parliament while the UK was still a member, without democratic representation, would be unconstitutional and subject to challenge at the European Court of Justice. Or so the argument goes.

Running an election in the UK under such circumstances would inevitably be tricky. The MEPs elected would sit in the European Parliament for only a short period of time.

EU officials also worry that the UK would end up electing an extreme and unhelpful mix of mini-Farages and People’s Vote activists. There is  a fear that an extreme grouping of British MEPs could wage “guerrilla warfare”, actively obstructing and subverting the EU’s legislative agenda.

There is also the question of the mechanism by which the British apportionment of seats would be reallocated to other countries once the new UK MEPs eventually leave.

Extension beyond July would be more palatable to the EU if it were possible to exclude the UK from this round of European Parliament elections. This is the subject of active discussion in Brussels. The dominant EU view is that excluding the UK, a member-state, from the democratic processes of the EU would require changing the EU’s treaties.

The EU would need to stipulate that once a member-state has triggered Article 50, it no longer participates in elections. However, treaty change could take a long time; and once the treaty is opened, other member-states might start asking for changes too.

Some officials think the same outcome could be achieved via a short protocol that could be quickly ratified. This is certainly the most appealing option from an EU perspective – but the ability to take such an action via a protocol is not currently the consensus view in Brussels.

Furthermore, excluding the UK from EU elections throws up other problems. EU citizens residing in the UK would no longer have anyone to vote for; in effect, they will be disenfranchised.

What happens?

Despite all of these complications, ultimately whether Article 50 can be extended beyond July remains a political question. If there is political will on the EU side, a way will be found. As to how – the predominant view across the EU is that the UK would have to run elections, and the EU would have to make it work.

Indeed, there is a precedent of sorts for a country’s MEPs sitting for only a part of the usual five-year term. When Croatia joined the EU in 2013 it elected 12 MEPs to serve out the final year of the 2009-14 term. However, politically speaking, a country joining the EU is not exactly analogous to one exiting.

Yet regardless of how it is dealt with (be it MEP elections or a workaround), the EU will not contemplate a prolonged extension unless the UK can answer one fundamental question: why does the UK want it?

Even a short extension is not a given: as Jean-Claude Piris, the former director-general of the EU Council’s Legal Service, has pointed out, an extension request for the purpose of renegotiation or further parliamentary procrastination would be treated less favourably.

The EU will not go through all of the effort of extending past July solely to allow the UK to procrastinate further. It will need a satisfactory reason to justify doing so. Perhaps a UK general election would suffice. Or even a referendum. Furthermore, any extension will come with conditions designed to narrow the range of choices available to the UK, and push the process towards a conclusion.

The EU is growing tired of Brexit, and increasingly views it as an opportunity cost, pulling resources away from other important business. The EU needs the UK to decide whether it wants to leave with a deal that looks substantially like the one already on the table, leave without one, or call the whole thing off. And it is understandably reluctant to drag the Article 50 process out for too much longer without good reason.

But if the UK can find one, then the EU might allow it. Albeit reluctantly.

Sam Lowe is a senior research fellow at the Centre for European Reform. @SamuelMarcLowe