Could the European Council impose a ‘qualitative condition’ to hold a second referendum or General Election on a new Brexit extension?
By Oliver Garner
The EU (Withdrawal) (No.2) Act 2019 (‘The Extension Act’) was passed in September 2019 before the infamous unlawful prorogation of the UK Parliament. The Act obliges the Prime Minister to request a further extension of the Article 50 period to 31 January 2020 in the event that no deal has been agreed, and Parliament has not agreed to no deal, by 19 October 2019. The ambiguity over whether the Prime Minister will comply with this legislation has raised concerns over the government’s commitment to the rule of law. On 4 October 2019, however, government submissions to the Scottish Court of Session suggested that the Prime Minister will indeed comply with the law. If the government’s new proposals for the Irish backstop do not lead to a deal, therefore, it seems that the legal issue of extension will transfer to the European level at the next European Council meeting.
This post will consider a specific question that arose during the passage of the Extension Act: whether the European Council could impose ‘qualitative conditions’ on a further extension. Specifically, in light of insinuations by the European Parliament, this post will consider whether an Article 50 extension could be made conditional upon on the UK holding a General Election or a second referendum on whether to remain within or leave the EU. The possibility of a second referendum has been increased through statements by the Labour shadow Brexit secretary that the party will insist on a requirement to hold a second referendum as an amendment to any motion passing an amended Withdrawal Agreement. The outcome of the European Council meeting and the extraordinary sitting of the House of Commons on Saturday will provide a clearer indication of whether such an extension will become a reality.
The EU law question of extension
During the expedited passage of the Extension Act, the question arose during amendment debates in the House of Lords of whether the European Council could impose qualitative conditions on the granting of an extension. Lord Kerr, one of the drafters of the text of Article 50 TEU, stated that:
‘There is in Article 50 no provision for qualitative conditions on an extension. Temporal conditions [on] the length of the extension, that is possible’.
Lord Kerr’s remarks correctly refuted concerns from other peers over treaty rights being withdrawn from the UK through a European Council extension decision. He is also correct that the text of Article 50 does not make any explicit provision for the European Council to provide conditions. The text of Article 50(3) TEU merely states that the treaties will cease to apply two years after notification failing a withdrawal agreement coming into force ‘unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period’.
The practical relevance of qualitative conditions has been heightened by the latest European Parliament resolution on Brexit in which it states that:
‘[I]t would support…extension…if there are reasons and a purpose for such an extension (such as to avoid a ‘no-deal exit’, to hold a general election or a referendum, to revoke Article 50, or to approve a withdrawal agreement)’.
The teleological interpretation of the treaties and secondary legislation adopted by the Court of Justice of the European Union means that explicit textual inclusion is not a necessary condition for the identification of powers, rights, and duties in EU law. Instead, in a situation of textual ambiguity, the ECJ will divine and utilise the telos of the legal provision and determine whether the claimed legal interpretation is compatible therewith. The ECJ has recently provided a statement of the telos of Article 50 in the Wightman revocation case.
The dual-purpose of Article 50 and compatibility of conditions
The Wightman case confirmed that Article 50 TEU pursues two objectives: (1) enshrining the sovereign right of a Member State to withdraw from the European Union; (2) establishing a procedure to enable such a withdrawal to take place in an orderly fashion. The Court of Justice held that determining whether a power is permissible under the clause necessitates consideration in accordance with not only the wording and objectives of Article 50, but also its context and the provisions of EU law as a whole. Consequently, despite no explicit wording on a right of revocation, the ECJ found that a Member State could indeed unilaterally and unconditionally revoke a notification in Article 50 in accordance with its own constitutional requirements. In the hypothetical scenario that a party with standing made a claim that a European Council decision violated Article 50, the ECJ would follow the same teleological method.
The judgment does provide some obiter dicta on the legal nature of extension. The ECJ outlines that revocation reflects a sovereign decision of the Member State and is ‘fundamentally different in that respect from any request by which the Member State concerned might ask the European Council to extend the two-year period’ (para 60). Extension is distinguished from revocation insofar as the latter requires unanimity whereas the former is unilateral. The Court also stresses, contrary to the Advocate-General’s Opinion, that the unilateral and unconditional sovereign right to revoke means that no conditions may be imposed by the EU institutions. The judgment establishes that extension, as opposed to revocation, is multilateral rather than unilateral. This leaves the door open to a finding that, in analogous contrast to revocation, extension is a power that may be exercised subject to conditions beyond setting a temporal deadline.
Arguably, there is already a precedent for qualitative conditions in the second Decision to grant an extension on 10 April 2019. Article 1 of the Decision provided for extension to the current deadline day of 31 October 2019. However, Article 2 outlined that the Decision would cease to apply on 31 May 2019 if the United Kingdom had not held elections to the European Parliament and had not ratified the Withdrawal Agreement by 22 May 2019.
Although these conditions regulated the temporal framework for withdrawal – the quantitative conditions that Lord Kerr discusses – these deadlines are predicated upon the fulfilment of a qualitative condition: the United Kingdom holding European Parliament elections. It may be argued that, if this condition had been challenged in litigation, this condition would have been found to be justifiable on the basis of fulfilling the objective of an orderly withdrawal. An Article 50 extension resulting in a Member State contravening its treaty obligations to hold European Parliament elections would have breached its treaty provisions governing the European Parliament, the right of EU citizens to vote, and the obligation of sincere co-operation between Member States.
A similar argument could be pursued in the event of the European Council imposing conditions on a new extension. It could be suggested that the ongoing uncertainty over the exact date for the United Kingdom’s departure will impair the functioning of the institutions during the next legislative session. This claim is bolstered by the UK’s failure to nominate a new Commissioner, and reports that the Prime Minister would seek to disrupt the functioning of the institutions if an extension were granted. The argument would follow that it is in the interests of both the EU and the UK that there is certainty and a clear resolution to the UK’s status as a Member State rather than the interminable uncertainty of repeated extensions. An extension being predicated upon a second referendum in accordance with the constitutional requirements of the UK would resolve this uncertainty.
The counter-argument is that this would undermine the first objective of Article 50 of enshrining the sovereign right of a Member State to withdraw. Imposing a condition to re-consider this decision in order to grant an extension that is deemed necessary by the Member State to effectuate withdrawal would encroach upon this right and would amount to illegitimate supranational interference in the decision. The power of this argument may be diluted, however, by the fact that such a condition would not indefinitely impede the Member State from withdrawing. The government would be free to reject such a condition and thus withdraw automatically on the current exit day. This situation is complicated somewhat, however, in the current UK situation. The Extension Act holds that if the European Council offers an extension to 31 January 2020 then the Prime Minister must accept immediately. This would be the case regardless of any conditions attached. Parliament would therefore have no capacity to debate these conditions.
On the other hand, it may be argued that such conditions would not contravene the sovereign right to withdraw as the European Council would not be dictating what the final decision should be. Instead, it would be making the operation of EU law conditional upon the Member State exercising its sovereign right to make such a decision.
I would argue that a stronger case against such conditions could be divined from ‘EU law as a whole’ and particularly from the principles of subsidiarity and proportionality. As outlined in Article 5 TEU, the former means that the Union will only act in areas outside of its exclusive competence insofar as objectives of the proposed action cannot be sufficiently achieved by the Member States. The latter principle holds that the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. If a Decision to extend can be regarded as Union action in service of the objective of ensuring an orderly withdrawal, it may be argued that imposing a condition to hold a second referendum would exceed what is necessary to achieve this orderliness. Furthermore, this would stray beyond the remit of Union action and into an area that should be left for achievement at the national level. Subsidiarity and proportionality may also be advanced against arguments that the European Council could and should offer an extension without a prior request by the United Kingdom.
The decision whether to continue to participate or not in the project of European integration may be regarded as the most sensitive area of action that must be left to the sovereign determination of the citizens of the Member States. This would therefore be the least appropriate sphere of action for the EU to impose obligations upon a Member State, even within the realms of the textually unfettered discretion over extension provided to the European Council under Article 50(3) TEU.
Conclusion: legal possibility but political sensitivity
This post has sought to argue that the possibility that the European Council may impose a condition to hold a General Election or a second referendum for an extension is not legally precluded by a lack of explicit textual foundation in Article 50. The Court of Justice would determine the legality of such a condition by reference to the two objectives that Article 50 TEU pursues. Although such a condition could be justified on the basis of seeking an orderly end to the procedure of withdrawal, it may be more likely to fall foul of the objective of ensuring the right to withdraw as a sovereign prerogative of the Member States. It would also arguably contravene the requirements of subsidiarity and proportionality. Finally, even if such a condition were legal under the treaties, it may be suggested that the perception of the European Council prescribing a Member State to re-consider a decision to withdraw would be so politically explosive that it would jeopardise the claims that the EU remains a voluntary association of states.
These political consequences mean that although the European Parliament has been bold enough to indicate the possibility of such conditions, the European Council should be hesitant to pursue this course of action in reality. The latest indications from unnamed UK government sources are that even if there is an extension up to or beyond 31 January they will refuse to renegotiate the Withdrawal Agreement. In this situation, the question for the European Council is whether it grants the three month extension and takes the gamble of a General Election returning a new government within the three month period up to 31 January, or whether it explicitly precludes the inertia and disruption of uncooperative UK membership by offering a shorter extension specifically for the purpose of holding a General Election.