1. Always instructive to see what responses are triggered by a long tweet that tries to provide information to enrich the Brexit debate. Here is a follow-up (much shorter, I promise!) on the specific issue of European Parliament elections.
2. Is it really ‘inappropriate’ for the UK to hold elections for the new EP during an Article 50 extension period?
3. Holding such elections allows citizens of Member States participating in the ‘European project’ to exercise the valuable democratic right directly to choose MEPs who will, over the next five years, represent their strand of thinking about where that project should be heading.
4. As the EP website puts it, ‘By voting, you help decide what kind of Europe we have in the years to come’.
5. The UK is a Member State that has indicated, by giving notice under Article 50 TEU on 29 March 2017, that it does NOT want to go on participating in that project.
6. Were the UK to be given (say) a six month extension (April 2019 to September 2019) and hold EP elections, the newly elected UK MEPs would be helping to shape the future of the EU for 3 months, including the summer recess.
7. Of course, if the UK were to be given (say) a four year extension, there would be a stronger argument to say that, on the contrary, it would indeed be right for the UK to hold EP elections in May 2019 and select new MEPs.
8. As far as I am aware, however, an extension of that length is not amongst the options presently being canvassed.
9. Now to the legal basis for alternative arrangements. As previously indicated, Article 50 TEU (departures) is the mirror image of Article 49 (accessions). Any extension of the Article 50 period must (by definition!) be based on Article 50 itself.
10. Against that background, it is legitimate to explore drawing on the Croatian analogy explained in my earlier tweet.
11. The development of EU law has shown, repetitively, that if the Member States have the necessary shared political will to do X (and X is compatible with fundamental rights), lawyers working together in good faith can find the necessary technical legal means to do X.
12. (Unfortunately that last statement does not apply to solving the issues surrounding the Ireland / Northern Ireland border, which are constrained by history and geography.)
13. I am very sure that cleverer and more creative lawyers than I can, if requested to do so, craft further detailed options for appropriate UK EP representation and address specific concerns – and they assuredly will not try to do that on Twitter!
14. For example: it is necessary for the EU to ensure that it preserves the legitimacy of the EP and makes sure that EU acts enacted involving the EP are not open to challenge.
15. Thus, were the UK to decide to revoke its Article 50 notification during the extension period, the legal counterpart to not holding EP elections in May 2019 might need to be that that revocation would only take effect after such elections had been held.
16. However, the essential point is, the EP elections ’tail’ should not be allowed to wag the Article 50 extension ‘dog’. The two key questions about any such extension (if requested) are and remain, ‘how long?’ and ‘to do what?’
17. Please feel free to RT.
