The Prime Minister reported to the House of Commons last week that any further extension of the Article 50 notification period “would certainly mean participation in the European parliamentary elections”.  I think she is wrong as a matter of law, and with five distinguished EU law experts (on whom, see further here), have written an Opinion to say so.

This is a matter not just of legal disagreement, but – as identified by no less a figure than Eleanor Sharpston, a serving British member of the EU’s Court of Justice, of huge practical significance.

  • The prospect of participating in European elections is viewed with intense distaste by many MPs. Campaigning to elect MEPs for a nominal five-year term, almost three years after the vote to leave the EU, is seen — particularly in strongly Leave areas — as something to be avoided at almost any cost.
  • Even if the political will could be found to hold the elections, it will only be possible to do so once preparations have been made. These include the giving of notice by returning officers, which, under UK law, must be done by 12 April for an election on 23 May.
  • If the UK and EU27 maintain the rigid view that extension past April 12 requires European elections to be held, and if such elections are either politically impossible or precluded by the passage of time, the consequences could be dire.
  • In particular, the refusal of a further extension to the Article 50 period on this ground would dramatically narrow the UK’s options and could help precipitate a no-deal Brexit.

In the Opinion (which was written on our own initiative, and without the intention of advancing any particular solution to Brexit), we dismiss concerns that a failure to hold elections in the UK could invalidate subsequent EU laws. We examine the application of EU electoral law, and the principle of representative democracy, to a departing member state whose citizens will not be affected by what the European Parliament decides. And we suggest some practical mechanisms, falling short of outright treaty change, by which an extension could be assured without the need for European elections in the UK.

As I said in The Times this morning (£), fresh thinking is needed to stop both sides from boxing themselves in. The difficulties in extending Article 50 are legion, but they do not include the illusory requirement of elections that few seem to want.

Our Opinion is here.