Holding European Parliament elections is easier than MPs think

TOPSHOT - European Commission President Jean-Claude Juncker (R) and Brexit campaigner and member of the European Parliament Nigel Farage exchange a "high five" gesture, at the start of the plenary session on the EU's next long-term budget, in the European Parliament in Brussels, on May 2, 2018. - European Commission chief Jean-Claude Juncker unveiled "reasonable and responsible" plans Wednesday for a bigger post-Brexit budget worth 1.279 trillion euros covering 2021-2027. "Our proposals lead to an overall amount of 1.279 trillion euros," Juncker told the European Parliament, adding that it was equivalent to 1.1 percent of the European Union's economic output. (Photo by Emmanuel DUNAND / AFP) (Photo credit should read EMMANUEL DUNAND/AFP/Getty Images)

Most MPs do not want the UK to hold the European Parliament elections that will be a precondition of a long extension to the Article 50 period, for obvious reasons. Some fear an electoral windfall for parties at either extreme of the Brexit debate at their expense (and Tommy Robinson MEP), others a backlash from constituents, others being locked into EU institutions indefinitely.

The breadth and depth of that opposition across the House means it is difficult to foresee a majority existing for the legislation that MPs assume will be necessary to hold the elections, in the event of a long extension. It is widely believed that the law providing for elections to Brussels and Strasbourg, the European Parliamentary Elections Act of 2002, was repealed by last year’s EU withdrawal act.

In which case, MPs say, no matter: they can simply vote against, or refuse to legislate for, participating in European elections even if the EU insists on British participation.

They may reassure themselves with that argument but the uncomfortable truth is that it isn’t quite right. Though the EU withdrawal act provides for the repeal of the parts of the 2002 legislation that allow European Parliament elections to take place, those provisions have not yet come into force and only commence on exit day (the bits that have already been repealed concern the periodic review of the distribution of MEPs within the United Kingdom).

The date on the face of the Act is currently 29 March and will be changed to 12 April next week, if MPs approve the statutory instrument giving effect to the Article 50 extension in domestic law. If there was another, longer extension after that, the process would need to be repeated, in order to update the British statute book to reflect international law for a second time.

If MPs acceded, then they would find they had limited recourse to stop European Parliament elections. The law providing for them would still be in force until the extension ended. Though the date for the elections would be set by a statutory instrument, it would be subject to a negative process and would automatically become law on the date set by the government unless MPs expressly objected to it – but there would be little chance of a vote happening unless a motion to annul was laid by the official opposition, and even in that case there would be no guarantee. Politically, it is difficult to see opposition parties refusing to set the date of elections once a long extension is approved, and even if they wanted to, it would be procedurally difficult.

In practice, then, once MPs vote to change exit day in domestic law to reflect the fact of an extension, it is game over.

Though there are other political issues that could at least delay a European Parliament election in that scenario – the redistribution of the UK’s 73 seats among other member states, for instance – MPs have limited power to do so. The price for stopping no-deal with an extension at the second time of asking is even higher than many realise.