Countdown to Brexit: 14 days – 29 March - Why the panic to hold a third ‘Meaningful Vote’ today?

23:00 GMT 29 April 2019: Brexit Groundhog Day.

On 20 March – nine days before today’s scheduled Brexit, 29 March 2019 - the Prime Minister wrote to the President of the European Council requesting an extension to the Article 50 period in order to delay Brexit until 30 June 2019.

EU leaders at the European Council summit held in Brussels unanimously agreed to delay Brexit – but with some strict conditions.

One of these conditions is driving the Government hold ‘Meaningful Vote 3’ today.  Unless the House of Commons approves the Withdrawal Agreement by 23:00 GMT on 29 March, Brexit day will be fixed by the European Union as 12 April 2019.   The UK will be faced with a choice between leaving the EU with no deal; coming up with an alternative plan - that could mean a longer extension and taking part in the European Parliament elections; or revoking Brexit and remaining a member of the European Union for the foreseeable future.

In requesting an ‘Article 50 extension’, the Prime Minister stated that she intended to hold another Commons’ vote on the Withdrawal Agreement “as soon as possible - and that the extension would be required to pass legislation to implement it.”  She said that she did not believe it to be in the UK or EU interest for the UK to take part in the European Parliament elections.

President Tusk responded that a short extension would be possible - but conditional on a positive vote on the Withdrawal Agreement.  Whether by accident or design, the condition was specific in naming the Withdrawal Agreement and did not link it to the other part of the ‘deal – the ‘Political Declaration’ that sets out the framework for negotiating the long-term relationship between the UK and EU.

With 10 minutes to the 5pm deadline to lay down a motion, the Leader of the House of Commons, Andrea Leadsom, reflected this ‘nicety’ – combined with a response to the Speaker’s ruling that Parliament would not vote on a ‘motion that is the same – or substantially the same,’ and split up Theresa May’s ‘deal’.  Furious MPs – who normally spend Fridays’ on constituency matters – discovered that they were required in Westminster to debate and vote on ‘Meaningful Vote3’ – or as the BBC labelled the split…’”Meaningful Vote Two-and-a-half”.  The result, was a third defeat for Theresa May – but this time a mere 58 vote majority against accepting the Withdrawal Agreement.

Somewhat less than ‘vote 1’ – defeated by a 230 vote majority; and ‘vote 2’ – defeated by a 149 vote majority.

The reaction of MPs - interviewed by Brexit Partners immediately after the vote - was generally one of deflation…still no certainty, still no nearer consensus, still “embarrassment” in the British political process.

The good news is that constitutional experts believe that the crisis is ‘merely’ political – and not yet constitutional.  That hasn’t, however, prevented journalists at the Evening Standard claiming that it is a ‘full-blown constitutional crisis’. 

The odds of a UK no-deal Brexit at 23:00 BST on 12 April just shortened.


The European Council agreement to an Article 50 extension

The European Council met on 21-22 March, scheduled an agenda item to discuss Brexit - and unanimously agreed to an extension of Article 50 until 22 May 2019 - provided the WA is approved by the House of Commons by 29 March.  In the event of the WA not being approved, the European Council agreed to an extension until 12 April 2019.  By this point it said that it expects the UK “to indicate a way forward before this date for consideration by the European Council”.

The UK request for an extension to 30 June was based on an opinion that UK participation in the European Parliament elections could be avoided given that the new Parliament does not sit for the first time until 2 July.  However, advice from the European Commission warned of the risk of a scenario whereby the UK then sought a longer extension after 23 May or decided to revoke Article 50 without then having representation in the European Parliament - and with some of the UK’s Parliament seats having been reallocated. 

The Commission warned that the failure to organise EP elections in the UK could make the constitution of the new European Parliament ‘illegal’ and result in subsequent EU decisions being open to legal challenge.  Failure to participate in the EP elections would also see the UK in breach of EU Treaty Articles relating to the rights of EU citizens to vote in EP elections. 

12 April is the latest date on by which returning officers in the UK would need to publish notice of the EP holding European Parliament elections and commence the preparations.  It was envisaged that the UK – where Thursday is the traditional election day – would hold its EP elections on 23 May.

The European Council’s agreement to extend Article 50 until 12 April 2019 gives the UK a short time to consider next steps should the WA not be approved by the House of Commons prior to 29 March - and to avoid a cliff edge to a no deal Brexit on that date.

It also reflects the need for some Member States to have certainty by mid-April as to whether the UK is remaining in the EU for a longer period and participating in EP elections.  If it is not, some of the UK’s EP seats will be reallocated to other nations.

Deal, no-deal, a long extension or revoke Article 50

In his remarks following the European Council Brexit session on 21 March, European President, Donald Tusk, held out the possibility of an extension being agreed beyond 12 April if the WA had not been approved – but the UK had chosen to participate in the EP elections.  He said the UK Government will then have “a choice of a deal, no-deal, a long extension or revoking Article 50”.

In her statement following the European Council, UK Prime Minister said if the WA was not agreed, the UK “would either leave with no deal, or put forward an alternative plan”.  Mrs May said that further extension would mean UK participation in the EP elections - but that she believed strongly “that it would be wrong to ask people in the UK to participate in these elections three years after voting to leave the EU”.

European Council of 21 March 2019 – Summary Conclusions

The Withdrawal Agreement will not be re-opened but the Political Declaration could be

Statements from the EU institutions and Member States have previously suggested a willingness to agree to an Article 50 extension if the UK requests this, but provided it is for a specific stated purpose.  There have been indications that EU leaders would be prepared to extend Article 50 and re-open talks if there was a major shift in the UK position.

Such talks would focus on possible changes to the PD to reach agreement on a more specific framework for the future relationship that could win majority support in the Commons for the WA and PD as a package.  EU leaders affirmed at the December 2018 European Council that the WA was “not open for renegotiation” and this position has been reiterated repeatedly since.

In a speech to the European Parliament on 16 January 2019 - following the first ‘meaningful vote’ defeat - the EU’s chief Brexit negotiator Michel Barnier insisted that the WA represented the “best possible compromise” and its ratification remained “necessary”.  He also said that “the backstop which we have agreed with the United Kingdom must remain a backstop and it must remain credible”.

With regard to the future relationship, Barnier said that if the UK chose “to change its red lines, and to be more ambitious and go beyond a simple free trade deal in our future relationship, then the EU would be ready to immediately support this evolution and respond favourably”.

On 30 January 2019 - the day after the Prime Minister committed to seeking legally binding changes to the WA addressing the House of Commons concerns on the backstop - President Tusk said that the EU position was “clear and consistent” and that the WA “is not open for renegotiation”.

Following the agreement of new supplementary texts by the UK and EU on 11 March, Commission President Juncker said:

It is what we do with this second chance that counts.  Because there will be no third chance.  There will be no further interpretations of the interpretations; and no further assurances of the re-assurances”.

The European Council decision formalising the agreement on Article 50 extension was published on 22 March, affirmed that:

An extension excludes any re-opening of the Withdrawal Agreement.  

Any unilateral commitment, statement or other act by the United Kingdom should be compatible with the letter and the spirit of the Withdrawal Agreement.

An extension needs to be for a clear purpose

Following the Government’s defeat in the second ‘meaningful vote’ on 12 March, statements issued by spokespersons for both President Tusk and President used the same wording:

“On the EU side we have done all that is possible to reach an agreement.

Should there be a UK reasoned request for an extension, the EU27 will consider it and decide by unanimity.  The EU27 will expect a credible justification for a possible extension and its duration.  The smooth functioning of the EU institutions will need to be ensured.”

European heads of government have also stressed the need for a clear purpose for an Article 50 extension and to avoid prolonging negotiations unless there was a significant shift in the UK position.  For example, on 27 February French President, Emmanuel Macron, said that a request for Article 50 extension would need to be “justified by new choices by the British” and “under no circumstances would we accept an extension without a clear perspective”.

On 25 February, Dutch Prime Minister, Mark Rutte, said if the UK asked for delay “the EU will ask what do you want with it?”.  He said: “We don’t want to go round in circles for the next couple of months. What will be achieved by it?”

On 21 March, prior to the European Council, Irish Prime Minister, Leo Varadkar, said: “Everyone wants to avoid a no-deal but we can’t have a situation whereby we have a rolling cliff-edge, where we just put off decisions and deadlines every couple of months.”

However, the day before, Varadkar had said it was time to “cut the British Government some slack” and that Ireland was willing to support the UK request for an extension “but obviously we’re not entertaining any change to the withdrawal agreement or the backstop”.

Arriving at the European Council on 21 March, President Macron said: “The exit process has taken two years of negotiation. It cannot be renegotiated. . . In the case of a negative vote in the British parliament, we will be going to a no-deal.”

Macron also said: “There must be a deep political change for there to be anything else other than a technical extension”.

In his statement following the General Affairs Council on 19 March, Barnier said that key questions would be whether an extension increases the chances for the ratification of the Withdrawal Agreement or whether the UK wants a bit more time to rework the Political Declaration on the future UK-EU relationship.

Speaking to reporters after the meeting, Mr Barnier also said: “My feeling is that a longer extension needs to be linked to something.  There needs to be a new event, a new political process and obviously I cannot attempt to preempt such a process.”

A longer extension requires UK participation in the EP elections

EU documents have made clear that a longer extension would require the UK to participate in the European Parliament elections on 23-26 May 2019, although there have been different interpretations as to the date by which the UK would need to have left the EU in order to avoid participation in the elections.

The European Commission’s view that in order to have legal certainty the UK would need to leave prior to European Parliament elections is reflected in the European Council conclusions on 21 March that the Article 50 can only be extended up to 22 May if the UK does not take part in the EP elections.

There were previous indications from some EU sources that the UK could avoid participation in the EP elections provided it left the EU by the date of the first sitting of the new EP on 2 July.

On 15 March, the Financial Times reported on a leaked Council of EU document circulated to EU Permanent Representatives that day which said that if there is an extended Article 50 period the UK would have to leave the EU by 1 July if it had not taken part in the EP elections on 23-26 May.

The Council document warned that EU institutions would “cease being able to operate in a secure legal context” if the UK remained in the EU after 1 July without having held EP elections, as EU acts “adopted with the participation of an irregularly composed parliament would be open to legal challenge which would put the security of legal relations in the Union seriously at risk, on a very large scale”.  It said that if a short extension is initially agreed, no further extension would be possible beyond the date of the EP elections if the UK had not taken part.  Similarly, any longer extension would “terminate its effects” before the new EP meets on 2 July if the UK had not taken part in the elections.

The UK Government note on ‘Parameters for Extending Article 50’ - published on 14 March 2019 - also pointed out that if the UK were to seek an extension and hence remain a Member State beyond 1 July it would need to participate in the EP elections for two reasons:

first, the EU Treaties provide that EU citizens have the right to be represented in the EP, and there is no legal mechanism by which the UK could return MEPs to the new EP other than by participating in the elections; and

second, for it to perform its functions, including the appointment of the Commission and the adoption of any legislation, the EP needs to be properly constituted – putting the functioning of the EU’s institutions at risk.

A European Commission document circulated on 20 March, however, stated that a short extension should be limited until 23 May without UK participation in the EP election.  It stated that for a longer extension beyond this date, the UK would be obliged to hold EP elections.  It also stated that an extension beyond 23 May without UK participation in the election would create legal uncertainty and warned of a scenario whereby the UK then seeks a longer extension after 23 May or decides to revoke Article 50 without then having representation in the EP and with some of the UK’s EP seats having been reallocated.  The European Commission warned that the failure to organise EP elections in the UK could make the formal constitution of the new European Parliament illegal and this illegality would infect all its subsequent decisions, including the appointment of the new European Commission or our future EU budget.  Every decision would be open to legal challenge.

The letter from President Juncker to President Tusk on 11 March 2019, referring to the new texts agreed with the UK that evening, stressed that the UK’s withdrawal from the EU should be complete before the EP elections and that if the UK had not left by then, “it will be legally required to hold these elections, in line with the rights and obligations of all Member States as set out in the Treaties”.

After the Prime Minister had sent her letter to Mr Tusk seeking an Article 50 extension on 20 March – in which she requested a Brexit date of 30 June - a spokesperson for President Juncker said that he had spoken to Mrs May on the phone and that he had “clearly warned the prime minister against including a date for the extension that will be after the European parliament elections”, and had repeated his advice that “the withdrawal has to be complete before May 23, otherwise we risk facing institutional difficulties and legal uncertainty, given the European elections date”.

The spokesperson emphasised that: “European elections have to be held if the extension date is beyond May 23. This is the position of the commission and this is what the president informed the prime minister again.”

There are different interpretations as to whether EU acts would be legally valid if the UK remained a Member State but had not elected MEPs by 2 July.

Advice from the European Parliament legal service reportedly states that “there is no rule hindering” the EP being constituted “without all seats having been allocated at the time of the first sitting”.  However, if the UK did not take part in the EP elections while remaining a Member State it would be in breach of EU Treaty Articles providing that EU citizens should have the right to be represented in the EP and to “participate in the democratic life of the Union” (Article 10 TEU).

EU citizens would also be deprived of their right to vote and to stand as candidates in elections to the EP in their Member State of residence, under the same conditions as nationals of that State (Article 20 TFEU).

There had been suggestions that the EU could agree a protocol which would allow the UK not to hold EP elections if Article 50 is extended into July.  This might involve the UK holding a ‘catch-up’ election at a later date if it decided to remain in the EU (for example if Article 50 was extended in order for another referendum to be held).  The UK Advocate General at the CJEU suggested that the issue could be addressed by extending the mandate of existing UK MEPs or allowing the UK to send national parliamentarians to sit as MEPs for a while.

However, the leaked Council document on 15 March said that a Treaty change would be required to allow the UK to extend Article 50 without holding EP elections.  This would need to be ratified in all Member States and would therefore not be feasible in a short timeframe.

A definite decision on UK participation in the EP elections must be made by 12 April

The European Council has agreed to extend Article 50 until 12 April 2019 if the WA has not been approved, by which date the UK would need to notify the EU of its intentions.  This reflects the need for some Member States to have certainty by this date as to whether the UK is remaining in the EU for a longer period - and therefore participating in EP elections - given that some of the UK’s EP seats will be reallocated to them.

12 April is also the date by which returning officers in the UK would need to publish notice of the EP election.

The EU has adopted legislation reallocating some of the UK’s seats in the European Parliament to other Member States.  27 of the UK’s seats will be redistributed to 14 other EU Member States, with 46 seats put by for future EU enlargements.  The biggest gainers will be Spain and France with five additional seats each, and Italy and the Netherlands with three additional seats each. Ireland will get an additional two seats.

This legislation, however, includes a clause stating that the new distribution will only come into effect if the UK has left the EU by the time the new Parliamentary term starts.  Nevertheless, the Member States that will be allocated additional seats when the UK leaves will need certainty in preparing for the elections.

The European Commission document on 20 March stated that any Article 50 extension should be limited to 23 May without the UK taking part in the EP elections, and with the agreed reallocation of seats applying, or beyond 23 May with the UK participating in the elections with the existing allocation of seats. It warned:

  • A change of policy in the United Kingdom – a phenomenon with which we have become familiar over the past months – could lead to a late election in the United Kingdom and persons validly elected in 14 Member States not taking up their positions.

  • The party political consequences in the Member States concerned are unpredictable.  In turn, this would create uncertainty as to the balance and majorities in the European Parliament.

It said that “given the Member States need to organise their elections in practice, finalise the list of candidates and print ballots, these 14 Member States would need to know at the latest by mid-April what the United Kingdom will do”.

The UK Government note on ‘Parameters for Extending Article 50’ - published on 14 March 2019 - also explained that for the UK to participate in the EP elections, returning officers must publish notice of the poll by 12 April, before which the Government must appoint the date of the poll by Order made under the European Parliamentary Elections Act 2002.

An additional extension to Article 50 could be agreed

The European Council conclusions on 21 March held out the possibility of an additional extension to Article 50 being agreed after 12 April, should the UK decide to participate in the EP elections.

The European Commission document circulated on 20 March had advised that “under all circumstances”, regardless of whether a short or longer extension was agreed, the European Council should envisage a single extension, rather than a series of extensions, which would keep the European Union in limbo for an extended period of time.

The Council document on 15 March had stated that in principle there would be nothing to stop more than one extension, but “decisions to extend may not be repeated in a manner that would make the duration of the withdrawal indefinite” - and that “such extension must respect the principle of proportionality between its duration and the purpose it is intended to serve”.

The document also stated that account should be taken of the need to ensure the necessary separation between the withdrawal procedure and the negotiation of a future relationship.  It noted that a negotiation on the future relationship can only take place with a third country once the withdrawal has taken place and that as a consequence “a prolonged extension would result in a significant postponement of the opening of that negotiation”.

John ShuttleworthComment