Countdown to Brexit: 7 days – ‘Deal; No-Deal; Delay’ – ‘Paper; Scissors; Stone’

As Angela Merkel visited Dublin yesterday to meet to show ‘solidarity with the people of Ireland’ who will be affected by the border, she must be both hearing echoes of her own upbringing on the other side of the iron-curtain in Eastern Germany – and figuring out how to stiffen the resolve to protect the European Union in a post-Brexit world.

Her visit came as detailed no-deal notices were published in Ireland.  Exports from UK to Ireland will be hit.  Consumers were warned that VAT will be payable on goods valued over €22; there will be import charges on items over €150.

In Westminster, the Prime Minister and Leader of the Opposition continued to look for common ground so that there is a ‘substantive’ reason for a delay to Brexit and ‘significant chance’ of the negotiated Withdrawal Agreement getting Parliament approval during the delay.

The House of Lords focused on the ‘Yvette Cooper’ Bill which, if it completes its passage into law, allows for the Prime Minister to be instructed by Parliament to request a delay at the European Council emergency meeting in Brussels on Wednesday evening – 10 April. 

Its supporters had wanted to see it fast-tracked through the upper chamber, so that it could become law by the end of today.  However, Peers who oppose the Bill resorted to ‘filibuster’ tactics.  The Cooper Bill discussion picks up again in the Lords on Monday – with the likelihood that it will be too late to influence next week’s key decisions.

For the record, the Cooper bill – even if it passes into law - would not make a ‘no-deal Brexit’ illegal.

The fate of Brexit now lies in Brussels.  The remaining 27 EU nations have to ‘unanimously’ agree to the requested delay – and theirs is the absolute right to propose a new Brexit date.  If the UK does not accept their proposal for a date – together with any and all conditions that have been attached to granting an extension - it will leave the EU at 23:00 BST on Friday 12 April with no-deal.

If the European Council refuses to offer a delay on Wednesday evening, the only options open to the Government to avert a no-deal Brexit on Friday 12 April are to: revoke Article 50 before the deadline; or the three-times rejected ‘Withdrawal Agreement’ through parliament on the Thursday - and beg for a rethink from the EU.  This is “unlikely” in the view of Austrian Foreign Minister, Karin Kneissl, speaking on the BBC’s Today programme – declaring it “wishful thinking”.

The EU deadlines are driven by the long scheduled European Parliament elections legally required to be to be held between 23-26 May 2019.  The European view is that the UK will have to take part in them if it is still an EU Member State when they take place.  The UK Government has accepted the EU position - and the Prime Minister has a preference for a requesting a further ‘Article 50 extension’ so that the UK leaves the EU by 22 May.

We will focus further on the impacts of no-deal in the coming days.  There are so many interdependent steps, parties and politics in the UK being granted a further delay to Brexit that chances of an ‘accidental’ no-deal on 12 April are significant.

As the clock ticks down to Brexit in 7-days, any break in the long, complex and fragile chain of events will end in a no-deal leap into the abyss.  It would be the final humiliation for the UK if the Brexit process collapsed through a missed step or deadline – caused by a something as prosaic as a plumbing incident.  It couldn’t happen, could it?  Brexit-tears!

Around Europe, extreme patience and understanding for the UK is needed from the EU 27 nations if they are to unanimously agree to a further Brexit delay – increasing cost and uncertainty for their Governments, businesses and citizens.

Oxford University ‘Reuters Institute’ – has published an EU wide study and survey of attitudes to Brexit.  In a nutshell: “sympathetic, but unconcerned”.

Background

EU position

On 21 March 2019, the European Council agreed to delay Brexit until 12 April.  The Withdrawal Agreement had been rejected on two occasions by the House of Commons - and the Council set a condition that the UK was to indicate “a way forward” by that date.   Agreement on a further extension of Article 50 beyond 12 April would be possible - but only if the UK participates in the EP elections on 23-26 May. 

On 10 April 2019, a European Council meeting will be held to consider any new UK Article 50 request.  The EU has indicated that a longer Article 50 extension would be conditional on the Prime Minister having a ‘positive majority within the House of Commons’ for a ‘credible alternative plan from the UK’ – and for the UK participation in the European Parliamentary elections. 

The question has been asked about an extension of the Article 50 without the UK taking part in the EP elections.  The European Commission is ‘uneasy about the political and legal risks of enabling such a situation’.

EU needs ‘legal certainty’

The European Commission and European Council have warned of the risk of legal uncertainty arising if the UK is still a Member State but has not elected new MEPs when the newly elected European Parliament sits for the first time on 2 July 2019.

A Council document - obtained and published by the Financial Times on 15 March - warned that EU institutions would “cease being able to operate in a secure legal context,” in this scenario.  It said that EU Acts “adopted with the participation of an irregularly composed parliament would be open to legal challenge.” This would “put the security of legal relations in the Union seriously at risk, on a very large scale”.

European Commission advice - obtained and published by the Times on 20 March - 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 opinion of the European Parliament’s legal service is however, that that the EP would be validly constituted even if the UK did not elect MEPs while still a Member State.  This was behind Theresa May’s first request for a delay until 30 June 2019.  The EU counter-offer was 12 April – the date that the UK’s European Parliament seats would be re-distributed across the remaining 27 nations.  Leader of Labour MEPs, Richard Corbett, underlined the point stating that if this were not the case, ‘a Member State could hold the EU to ransom by not taking part in the EP elections’.

If the UK remains a member of the EU on 23 May 2019, failure to hold elections in the UK would also mean that the UK would be in breach of EU treaty articles.  EU Treaties give EU citizens the right to be represented in the European Parliament - and to vote and stand in its elections.   There could, therefore, be a legal challenge from citizens deprived of these rights.

Member States need to know whether they are getting additional MEPs

The Council’s advice on 15 March indicated that an extension until 1 July would not be a legal or constitutional problem - given that the new European Parliament does not sit for the first time until 2 July. However, the Commission’s advice on 20 March warned of a possible scenario in which the UK decides to revoke Article 50 between 23 May and 1 July - or asks for another longer extension.  By that point a previously agreed reallocation of the UK’s European Parliament seats would have been implemented.

EU legislation has been passed to take effect when the UK leaves the EU.  It reallocates 27 of the UK’s 73 European Parliament seats to 14 other Member States.  The Commission has advised that these Member States will need to know by 12 April whether they will be electing MEPs on the basis of the new allocation or not, in order to finalise election preparations.  Returning officers in the UK are legally required to publish notice of the European Parliament elections on that date if the UK is taking part.

If the UK changed its mind about Brexit beyond this point, the other Member States would need to change their election planning.  If the elections had already taken place, they might be faced with losing their additional seats.  The number of European Parliamentary seats is capped at 751 by the Treaty on European Union (TEU).  Unless the reallocation was reversed there would be only 46 seats left to ‘allocate back’ to the UK.

Lawyers say a UK exemption from holding elections could be negotiated

A group of lawyers has suggested that some kind of ‘derogation’ could be negotiated - possibly under Article 50 of the TEU.  They argue this could be used as a legal basis to exempt the UK from participating in the European Parliament elections.  The basis of that exemption would be the UK’s status as a departing Member State.

The UK Advocate General at the European Court of Justice, Eleanor Sharpston, looked at the possibility of ‘extending the mandate of existing UK MEPs’; and at the UK Parliament sending representatives to sit as MEPs for a period.  Former head of the legal service of the European Council, Jean-Claude Piris, disagreed.

The ‘bottom line’ is that the EU needs certainty, and the UK has accepted that there is an absolute backstop of Brexit before 22 May 2019 – or that the UK must begin take part in the European Parliament elections on 23 May – and that decision has to be final before 12 April in order to allow returning officers across the UK and 27 EU nations to give notice of elections to voters and potential candidates.

References

https://reutersinstitute.politics.ox.ac.uk/risj-review/sympathetic-unconcerned-how-europes-media-cover-brexit

https://commonslibrary.parliament.uk/parliament-and-elections/elections-elections/european-elections-and-a-longer-extension-to-article-50/

https://twitter.com/PippaCrerar