Delaying Brexit could be illegal

Legal advisers to the German Parliament have warned that the UK could face legal action if Brexit is delayed beyond the European Parliament elections on 23 to 26 May and the UK fails to elect new MEPs.

In a legal opinion, Germany's Bundestag was advised that if Brexit is delayed for longer than two months, i.e. beyond the formation of the next European Parliament and Britain does not take part in the elections, the European Commission could bring proceedings against it for violation of its citizens' rights.  The opinion warned of "a violation of the active and passive voting rights of British nationals" if they are unable to vote or stand in elections to the European parliament.

The UK is due to leave the EU on 29 March, but so far Theresa May has failed to persuade parliament to back her withdrawal deal. Accordingly, calls have been growing for the Government to seek an extension to article 50 to delay Brexit. In the event May's deal fails to secure parliamentary approval on 12 March a short delay is likely.

Any extension would first have to be requested by the UK, and then agreed by the leaders of the 27 other EU member states.

However, any delay to Brexit beyond the date of the European Parliament elections will mean that UK nationals will still hold EU citizenship when the elections take place. As a result, they would be entitled to vote, and indeed stand as MEPs, in the elections.

The opinion also suggests that British nationals would be entitled to bring actions in national courts against the UK in advance of the European Parliament vote. These could then be referred to the European Court of Justice for a preliminary ruling on whether it is legally permissible for the UK not to take part in the European Parliament elections.

Theresa May has promised that if MPs vote to reject her Brexit deal on 12 March, but also reject a no-deal Brexit, they will be given a vote on whether to request an extension to the Article 50 deadline of 29 March. She has told MPs that any delay should not go beyond the end of June – but the Bundestag lawyers' warning means that even this proposed short extension may not be possible.

Other EU politicians have suggested that a delay could be useful to help avoid a no-deal Brexit, although the EU is unlikely to agree to a second extension if the first is unsuccessful.

In the UK parliament, more than 100 Conservative MPs abstained or voted against the amendment giving MPs a vote on delaying Brexit.

The widespread opposition to a delay, together with possible legal consequences, could make a no-deal Brexit more likely, as the only other option appears to be to revoke the UK's Article 50 withdrawal notice and remain in the EU. While the ECJ recently ruled that the UK can legally revoke Article 50 and halt Brexit without the permission of other member states, such a move has been firmly dismissed by May.

With time running out to get a deal in place before the end of March, and the new risk of a legal challenge over any delay, she may need to rethink her Brexit strategy.

If you would like more information on this topic, please contact Fiona Pearson, Senior Associate in Michelmores' Commercial & Regulatory Disputes team