In our latest weekly round-up, we reported that “exit day” had again been redefined in UK law and was now 31 October 2019 at 11.00 pm, providing that elections for the European Parliament were held in the UK on 23 May 2019. In her response on 11 April to a written question to the Minister to the Cabinet Office on whether the Government has plans to hold European Union elections in the event of an extension of Article 50 TEU until 30 June 2018, Chloe Smith (Norwich North, Con) stated:
“It remains the Government’s intention to leave the EU with a deal and not participate in European Parliamentary elections.
As a responsible Government we have taken the necessary steps required by law should we have to participate in the poll. We have laid a Day of Poll Order before Parliament that sets 23 May 2019 as the date of the poll for the European Parliamentary elections in the UK and Gibraltar. This provides Returning Officers with a date to hold potential European Parliamentary elections and meets the legal requirements at this stage.
The legislation does not make it inevitable that we will hold these elections, as leaving the EU before the date of the election would automatically remove our obligation to take part”.
The UK could leave before 31 October if the withdrawal agreement is ratified by the UK and European Parliaments; the United Kingdom and Gibraltar will not take part in the 2019 European Parliament elections if this occurs before 23 May: two days before the deadline for candidate nominations for the European Parliament.
In the event that the UK is still a Member State of the Union at the beginning of the 2019-2024 EU parliamentary term, 2 July, the number of representatives for each Member State taking up office will be that provided for in Article 3 of the European Council Decision 2013/312/EU, until the withdrawal of the United Kingdom from the Union becomes legally effective, (see Article 3.2: Establishing the composition of the European Parliament, European Council Decision (EU) 2018/937. 28 June 2018).
The European Parliament Liaison Office in the United Kingdom has confirmed that British, Republic of Ireland, Commonwealth (including Malta and Cyprus) and EU citizens resident in the UK are eligible to vote in these elections, as well as British citizens living abroad for up to 15 years after they have left the country. However, contrary to Article 3 of protocol No. 1 ECHR, there continues to be a blanket ban on prisoners voting, most recently considered in Miller and Others v The United Kingdom  ECHR 285 (11 April 2019).
Non-party campaigning and the European elections
The European Parliamentary Elections (Appointed Day of Poll) Order 2019 was laid before Parliament on 8 April 2019 and came into force on 10th April. In addition to the elections themselves, this also triggers the provisions of the Transparency of Lobbying, (etc) Act 2014 and the Political Parties, Elections and Referendums Act 2000, about which we posted in relation to the General Election in 2015 here and here.
With regard to the forthcoming European elections on 23 May, the Electoral Commission has issued the following advice to non-party campaigners [emphasis added]:
“We have published our guidance for the European Parliamentary elections scheduled to take place on 23 May 2019. The elections will take place in other EU Member States between Thursday 23 and Sunday 26 May 2019. The regulated period for political parties and non-party campaigners will extend back to 23 January 2019“.
“If you are an individual or organisation that spends money campaigning in the run-up to the EPEs, but do not stand as a political party or as a candidate, then you may need to register as a non-party campaigner.
You must register as non-party campaigner with us if you spend, or plan to spend, more than £20,000 in England or £10,000 in any of Scotland, Wales or Northern Ireland on ‘regulated campaign activity’ during a regulated period. During the regulated period there are rules about how much non-party campaigners can spend on ‘regulated campaign activity’.
For the 2019 European Parliamentary elections (EPEs), the regulated period began on 23 January 2019, and will end on polling day (i.e. 23 May). The regulated period applies retrospectively.
If you are unsure whether or not you have spent money on regulated campaign activity, then please refer to the guidance below. You can also get in touch with us if you have questions.
Whilst we process all registration applications as quickly as possible, undertaking our necessary assessment process means that a decision will not be granted immediately. If we have all of the information we need, it usually takes on average about a week to receive a decision. You should ensure that you lodge your application with us in good time for us to undertake this assessment before you spend over the registration threshold.
Links to further guidance on the requirements for registering as an NPC ahead of the EPEs, as well as the spending rules can be found below.
- Situations & procedures: European parliamentary election 2019: This part covers: rules for non-party campaigners at the European parliamentary elections 23 May 2019.
- Situations & Procedures: Registering with us: This part covers: who can register as a non-party campaigner; when you must register as a non-party campaigner; how to apply to register; what happens after registration.”
Whilst the “exit day” legislation does not make it inevitable that the Government will hold EU Parliamentary elections, the retrospective elements of the Political Parties, Elections and Referendums Act 2000 mean that organizations and individuals should take action now on their obligations with regard to their activities from 23 January 2019.
It should also be noted that, if the European Parliament elections go ahead in the UK, any regulated spending which non-party campaigners incur in relation to the EP elections will also count against their regulated spending limits for any domestic General Election called during the next twelve months.