EU Demand for UK GE (Hypothetical discussion)

GM228

One for Peregrinus no doubt.

Arising from a discussion in the Brexit thread, my main post on the point here.

The notion that the EU can demand the UK hold a general election or referendum in return for an extension has popped it's head up, ultimately it can be a basis for the EU accepting an extension request when the UK offer to do such, but as for the EU making demands of such, my opinion is that is a big no for a number of reasons:-

1. It goes against the very fact the EU as an institution can not interfere with purely domestic matters of member states, this is long established by the ECJ,

2. In accordance with the provisions of the Vienna Convention on the Law of Treaties and customary international law a treaty (and therefore the basis for the treaty) prohibits interference with purely domestic affairs (not expressly adopted by the EU, but customary International Law is)

3. There is a prohibition of the threat or use of force against the territorial integrity or political independence of any state under the UN Charter (the charter must be respected under Article 3 of the TEU)

That aside I'm also thinking possibly the principles of conferral and procedural autonomy also prevent such a demand being made.

Thoughts anyone?


For completeness, my post in the Brexit thread:-

GM228 wrote: »

sondagefaux wrote: »

GM228 wrote: »

Look at the point I was referring to in relation to the EU making demands that the UK hold a referendum, the EU absolutely can not interfere with purely domestic matters, nor can it for example simply decide to impose an extension as it sees fit, there must be unilateral agreement.

The EU can't encroach on a member states sovereignty and force it to do something which is not in contradiction of community law, such an action is beyond the competence of community law.

The European Council can impose whatever conditions it wants to grant an extension.

It could decide that an extension would only be granted on condition that Johnson change his name by deed poll to Doris if it wanted to and there's nothing in EU law to prevent it doing so.

Look up the principle of Non-Intervention.

You can not make demands which go against the territorial integrity or political independence of any state to be used as negotiating tactics, making a demand such as a requirement to have a GE which is a purely domestic matter goes against the principles of the UN Charter (which is enshrined in the TEU) or the Vienna Convention on the Law of Treaties.

From the UN General Assembly's Friendly Relations Declaration:-

No State or group of States has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.

It is also against Customary International Law which the European Union is bound by as confirmed by the ECJ in the Western Sahara Campaign UK vs Commissioners for Her Majesty's Revenue and Customs and Secretary of State for Environment, Food and Rural Affairs Case C‑266/16 case, note what the International Court of Justice stated in the Nicaragua vs The USA [1968] ICJ 1 case:-

The principle of non-intervention involves the right of every sovereign State to conduct its affairs without outside interference . . . . As to the content of the principle in customary law, the Court defines the constitutive elements which appear relevant in this case: a prohibited intervention must be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely (for example the choice of a political, economic, social and cultural system, and formulation of foreign policy). Intervention is wrongful when it uses, in regard to such choices, methods of coercion, particularly force, either in the direct form of military action or in the indirect form of support for subversive activities in another State

Interfering with purely domestic sovereign matters is a no no for the EU, this is well established and most recently touched upon in the Article 50 Wightman and Others v Secretary of State for Exiting the European Union Case C-621/18 case.

Victor

Back in March(?) May(?), the UK government was told that they would be leaving on 31 October, with or without an agreement. However, it was also agreed, that the 31 October deadline would be postponed in the event of an election or referendum.

It's a political forcing of an election/referendum via implications, not a legal one.

GM228

Victor wrote: »

Back in March(?) May(?), the UK government was told that they would be leaving on 31 October, with or without an agreement. However, it was also agreed, that the 31 October deadline would be postponed in the event of an election or referendum.

It's a political forcing of an election/referendum via implications, not a legal one.

I don't think that specifically was ever agreed to, rather when it was suggested (not by the EU I think) the EU responded by saying something along the lines that that would be a good reason to offer an extension if requested, all along it has been said an extension would be offered for a good reason (not any specific good reason), I very much doubt that the EU has any intention of a political forcing of a particular scenario, it simply responded to a point raised.

Anyway, the thread is in relation to the idea that the EU can demand a GE or referendum (granted there is nothing preventing both sides agreeing to such) and the legalities (as opposed to the moralities of such).

Peregrinus

As I see it, an extension cannot be legally conditional on an election for three reasons:

First, it's improper in principle. The EU has no role in deciding when member states should conduct domestic elections.

Secondly, no legal commitment can be given on the point. In the UK, it's the executive government which seeks an extension and agrees or fails to agree on any extension offered, but (in the current circumstances, under the Fixed Term Parliaments Act) it's the Parliament that decides whether an election will happen. The most the executive could do is say that it would seek to hold an election during the period covered by any extension (and we already know they want an early election) but they couldn't guarantee that it would happen.

Thirdly, how would it work in practice? An extension, once given, is given. If you make it conditional on the happening of a future event, and that future event doesn't happen, you can't retrospetively un-give the extension and deem the UK to have left the EU several weeks or months previously.

On the third point, in theory you could grant a short extension (say, one month) and make a statement saying that, if the dissolution of Parliament has been legally proclaimed within that time, then you will grant a further extension to allow UK membership to continue until after the outcome of the election is known.

But of course manouvres like that only make sense if the UK actually wants an extension. If the government only seeks an extension because the parliament forces it to, then any attempt to offer an extension conditionally or provisionally or whatever plays into the government's hands; it gives them an opportunity to try to engineer matters so that the extension never happens.

Realistically, I think what the European Council can do in the current circumstances is this; note that political circumstances make an early election in the UK highly likely and decide that granting an extension long enough to allow for that election to be held is a good idea. There will be no explicit or implicit condition that an election should actually be held, but those in the UK who have pressed for the extension will understand that they now have an opportunity to fight and win an election, and if they choose not to do this then nothing will really have changed, and a further extension is not likely to be given, even if sought.