Aidan Flynn, Senior Lecturer in Law, looks at the European Parliament, one of the seven European Union organs recognised, in the primary legislation of the EU, as ‘institutions’ of the EU.  

It seems likely that future generations of UK citizens will be left without an opportunity to exert influence and achieve clout in an assembly that is a key forum for democratic improvements across Europe.  The Dutch Prime Minister, amongst others, has reflected “sadly” on how a UK exit from the European Union “will leave a big hole.”  

This year is the fortieth anniversary of the first direct elections to the European Parliament.  Six years earlier the UK had acceded to the then European Economic Community (EEC).  From 1973 to 1979 our representatives in the Parliament were a selection of people who were appointed, rather than elected, from the pool of national parliamentarians at Westminster.

The introduction, in 1979, of direct elections to the Parliament was a very positive development.  Members of the European Parliament (MEPs) are elected for a term of five years.  Article 14(3) of the Treaty on European Union (TEU), often referred to as the ‘Maastricht Treaty’, states that “the members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.”  The TEU is, like all the treaties that have been ratified over the years, part of the primary legislation of the European Union.  These treaties are as important in the EU legal system as Acts of Parliament are in the UK legal system. 

Strasbourg is the official seat of the European Parliament.  The current President of the Parliament is Antonio Tajani, an Italian politician who has been an MEP since 2014.  The President is elected by the members of the Parliament.  Henry Plumb, an MEP from the UK, was President of the Parliament from 1987 to 1989.

Privileges

Article 8 of the Protocol on the Privileges and Immunities of the European Union provides that MEPs may not be subject to any form of inquiry, detention or legal proceedings in respect of opinions expressed or votes cast by them in the performance of their duties.  This is a necessary and important privilege.  The Parliament can waive an MEP’s immunity.  An example of a scenario where it did so led to the case Bruno Gollnisch v Parliament, which concerned an MEP in respect of whom the French authorities had opened a judicial inquiry for incitement to racial hatred.  The General Court (previously known as the ‘Court of First Instance’, it is attached to the EU’s Court of Justice in Luxembourg), was supportive of the Parliament’s decision.  Morano-Foadi and Neller have commented on the significance of this judgment “this case affirmed the capacity of the European Parliament to waive the immunity of an MEP who faces prosecution for the expression of an opinion that is not directly and obviously connected to the performance of their parliamentary duties.”

European Parliamentary Elections Act 1999

The purpose of this Act (of the UK Parliament) was to “alter the method used in Great Britain for electing Members of the European Parliament.”  The Labour Party manifesto at the 1997 General Election stated that “we have long supported a proportional voting system for election to the European Parliament.”  The new method of voting was in force in time for the 1999 European Parliament elections.

In England, Scotland and Wales the voting system is the d’Hondt system of proportional representation – regional closed list.  There are electoral regions (constituencies), for example ‘West Midlands’ (of England) and MEPs are elected by a regional list system.  Seats are allocated to parties in proportion to their share of the vote.  In Northern Ireland the system of proportional representation used is ‘Single Transferable Vote’.

The votes of voters in Gibraltar are counted as votes in the region / constituency of ‘South West England’.  In Spain v UK, a case decided by the Grand Chamber of the Court of Justice, the court permitted the extension of voting rights in European Parliament elections beyond the EU citizens resident in Gibraltar to third-country Commonwealth nationals also lawfully resident there.  The court chose not to focus on the fact that these people did not have EU citizenship, instead it placed emphasis on the nature of the close links of these residents with Gibraltar.

Committees

There are twenty-two committees in the European Parliament.  These include Legal Affairs; International Trade; Employment and Social Affairs; Civil Liberties, Justice and Home Affairs.

Membership of one of these committees affords an MEP the opportunity to exercise influence, build a reputation and gain valuable experience.  For example, Neil Parish MP (Tiverton and Honiton) was previously an MEP for South West England and he sat on the European Parliament’s Agriculture and Rural Development Committee.  Now an MP in the UK Parliament, he is the current Chair of the House of Commons’ Select Committee on Environment, Food and Rural Affairs.

Making European Union Law

One of the European Parliament’s three big powers is its role in making European Union Law.  Proposals for new EU law emanate from the European Commission.   The legislation is then created by two other institutions acting together, the Parliament and the Council of the European Union.

Originally the Parliament did not have this legislative role and the law making function was confined exclusively to the Council.  At that time the Parliament was often criticised as being merely a talking shop.  However, the Parliament’s powers were increased by the Single European Act, in the 1980s, and subsequently by the treaties of Maastricht, Amsterdam, Nice and Lisbon.  In light of how its role has evolved, Conway comments that “it makes sense to think of the EU as having a bicameral legislature consisting of the Council and the European Parliament as the two chambers.”  The enhancement of the Parliament’s powers is illustrated by the extent to which MEPs are now subject to substantial lobbying by corporations and various other interest groups.

Budget of the European Union

Another of the Parliament’s three main powers is related to its involvement in the EU budget.  The Parliament is provided with certain powers in relation to the budget by the Treaty on the Functioning of the European Union.  Article 314(4) of the TFEU provides that the European Parliament may amend any part of the draft budget (drafted by the European Commission).  The Parliament has rejected the budget as a whole on two occasions (in December 1979 and in December 1984).

Influence on the European Commission

The third main power that the Parliament possesses is its power of supervision of the Commission.  Under Article 230 of the TFEU, Commissioners have a duty to respond to questions put to them by the European Parliament or its members.  Commissioners know that is important for them to have positive engagement with the European Parliament.  Chris Patten, the European Commissioner for External Relations from 1999 to 2004, recalls that “you had to manage your relationships with colleagues in the Commission, the ministers and ambassadors of member states, and the European Parliament.”

Under Article 17(7) of the TEU a new Commission is subject to a vote of consent by the European Parliament.  In 2004, the Parliament opposed the appointment of Rocco Buttiglione, from Italy.  The Parliament cannot block the appointment of an individual member of the Commission-elect, its power is to block the appointment of the Commission as a whole.  Morano-Foadi and Neller tell us that “the Parliament felt so strongly about Buttiglione’s appointment that it became clear they would vote against the appointment of the proposed Commissioners en bloc.”  The Commission elect was withdrawn and Franco Frattini took the place of Rocco Buttiglione.

Parliament also has the right to dismiss the Commission en bloc (under Article 17(8) TEU and Article 234 TFEU).  In 1999 the Commissioners resigned when Parliament threatened to use its power to dismiss.

Heads of state or government

The heads of state or government are members of a European Union institution called the European Council. That status and also various other circumstances provide opportunities for making speeches at the European Parliament.  These engagements give the leader of a Member State a chance to try and exert influence on any given issue(s) that he / she regards as being important.  For example, former Prime Minister Tony Blair addressed the Parliament in June 2005. Seldon recounts how his speech “was greeted by rapt applause and a standing ovation at the end,” adding “six weeks into his third term, it was the first significant success he had achieved.”  In July 2018, MEPs heard a speech from the youngest of the twenty-eight heads of state or government, Sebastian Kurz, the Federal Chancellor of Austria.

Political Groups 

MEPs from each Member State do not sit together as the group of MEPs from their specific state.  The way that the European Parliament operates is that MEPs generally become affiliated with one of the eight political groups that exist at a European level.  For example, the UK Labour Party’s MEPs sit with the Progressive Alliance of Socialists and Democrats, which is the second biggest political group in the Parliament.  The biggest political group is the European People’s Party (EPP).  Following this month’s election, it is envisaged that the ‘La Republique en marche’ party of French President Emmanuel Macron will become affiliated with the Alliance of Liberals and Democrats for Europe.  There have been suggestions in the past that voters in a European Parliament election can be heavily influenced by the activities of a non-EU state.  Seldon and Snowdon, reflecting on the 2014 election, comment that “the EPPs unexpected victory is thought to be because the voters in Central and Eastern Europe swung to the right after the Russian intervention in Ukraine.” 

The UK Conservative Party was affiliated to the European People’s Party until 2009.  The former Prime Minister, and Conservative Party leader, David Cameron made a switch from the EPP to a new group called the European Conservatives and Reformists.  The then French President Nicholas Sarkozy was unimpressed by this switch, reportedly pleading with Mr Cameron, on four occasions, to refrain from making it.  Ashcroft and Oakeshott recall the immediate aftermath of one meeting between the two men, “after the meeting, when the Tory leader was safely out of earshot, the French President turned to his aides and sighed: ‘We’re going to have problems with this guy’.”  These were undoubtedly prophetic words.  The ‘guy’ went on to leave the UK, and others, with a huge problem, taking his country into what a recent leading article in the Financial Times called “a new and deeply uncertain future.”  Whilst holding the office of Prime Minister he took the decision to hold the 2016 referendum.  That decision has been aptly described as an “irresponsible gamble” by the current ‘father of the house’ in the Westminster Parliament.  An outcome of that gamble seems likely to be that young UK citizens will now be deprived of the opportunity to be aspirant MEPs.  Or will they? 

Will there be some more dramatic turns in the road during the long journey, in the direction of a UK exit, that began almost three years ago?

On the 23 May, the United Kingdom will go to the polls in the European Parliament elections.

Gareth Evans, Lecturer in Law, provides a brief summary of some of the key points connected to the elections: their purpose and procedure; why the UK is having to take part; and what impact today’s vote could have on the political landscape in the UK.

What are the European Parliament elections?

The European Parliament is one of the two legislative organs of the European Union and is the only EU institution directly elected by the people. Under Article 14 of the Treaty on European Union, elections for the European Parliament are required to be held every five years, electing a total of 751 MEPs across the 28 EU member states. Each member state has a proportion of MEPs calculated by population size; ranging from Malta with 6 MEPs to Germany with 96 MEPs. The United Kingdom elects 73 MEPs through a closed list proportional system (although this is slightly different in Northern Ireland) where each voter casts one vote for their chosen political party, rather than a specific candidate. Seats are then allocated using the D’Hondt formula – a method of proportional representation, designed to better convert the proportion of votes into seats allocated to each political party.

The reason for this difference in voting system reflects the fact that rather than representing specific single member constituencies, as is the case in the UK Parliament, MEPs are elected to represent multi-member regional constituencies. In some member states (e.g. Estonia, Netherlands or Sweden) the state itself comprises a single electoral region. Other member states, the UK included, subdivide their national territory into specific electoral regions. The UK is divided into 12 multi-member electoral regions, each of which then elects a set number of MEPs, based on population size. Grouping these regions and their share of MEPs onto the canvas of the UK’s four constituent nations, we find the breakdown of the number of MEPs as follows:  

England (comprising nine separate regions)   60 MEPs

Scotland                                                          6 MEPs

Wales                                                              4 MEPs

Northern Ireland                                             3 MEPs

Further details on the UK’s regional constituencies, and the political parties in those regions can be found via the following link.

Why is the UK required to hold these elections?

Alongside the complexities of the D’Hondt method, there is the added confusion of why the UK is required to hold these elections, two years and eleven months to the day after the referendum where a majority of voters opted to leave the EU. The reason for this scenario rests in the interminable deadlock at Westminster, and the UK Government’s failure to secure a majority to pass the Withdrawal Bill. Under the terms of the Article 50 process, the original date for the UK’s departure from the EU was at the end of the scheduled two-year negotiation process, namely 29 March 2019. The failure of the Withdrawal Bill to pass through Parliament before this date, however, led to the Prime Minister requesting an extension to the original withdrawal date. Originally this led to a new departure date of the 12 April, then further extended to the 31 October 2019. In the terms of this second agreed extension, the UK was obliged to take part in European Parliament elections, or leave the EU on 1 June 2019 with no deal.

The result of this welter of political activity, therefore, sees the UK having to take part in elections for the next five-year term of the European Parliament, while also continuing with the Brexit process. In a further ironic twist, in the albeit unlikely event that MPs support the Withdrawal Bill, set to be reintroduced into Parliament on the week commencing 3 June, the UK’s newly elected MEPs may never take up their seats in the European Parliament on the 2 July 2019.

 A Second Referendum by Proxy?

After having considered the process and reasoning behind Thursday’s vote, it is now appropriate to consider the possible effects of these elections on the UK’s political landscape, and the Brexit process. In this regard, I present the possible issues connected with this Thursday’s vote in three parts:

The first, perhaps most obvious factor connected with the vote, relates to the breakdown of the result between the hard-Brexit and unambiguously pro-remain parties. In the past, European Parliament elections have served as useful second-order polls on voter attitudes towards the UK government, as well as barometers on the extent of Euroscepticism/enthusiasm. Thursday’s vote looks unlikely to deviate from this pattern and, in the context of Brexit, is translatable to a second referendum by proxy.

On current predictions, the newly formed Brexit Party are set to receive the largest share of the vote, but not an overall majority. Indeed, the share of the vote between the hard-Brexit and unambiguously pro-remain parties is currently neck-and-neck, and so a re-run of voter attitudes at the 2016 referendum appears likely. On this point, it is pertinent to consider the percentage share of the vote, as well as the number of seats allocated to each party – both will likely play significantly in later debates on translating Thursday’s vote into a statement of national intention on Brexit.   

Second, with the looming departure of Theresa May as Prime Minister, the outcome of Thursday’s vote is also likely to have profound effects on the future makeup of the Conservative Party. On current polling, the Party are forecast to suffer significant losses across the UK, and possibly their worst ever UK-wide electoral defeat. With a large proportion of the votes forecast to be lost being to the newly formed Brexit Party, the final form of Thursday’s vote and the share of the vote between the hard-Brexit and unambiguously pro-remain parties, stands to play a significant role in deciding the ideological stance of the next leader of the Conservative Party, and the next Prime Minister.

A third, and perhaps less obvious factor to bear in mind after Thursday, is the territorial breakdown of the result across the 12 electoral regions – in particular, the devolved parts of the UK. If treated as a proxy to a second referendum, recent polling suggests that the result on Thursday is likely to mirror the 2016 referendum: delivering clear majorities for pro-remain groups in Northern Ireland and Scotland; a very close result in Wales, perhaps now flipped in favour of a pro-remain majority; and a narrow, but regionally incongruent, majority in favour of leave in England. With this in mind, divisions between the UK’s various territorial cleavages stand to continue to play a role in dividing the political tapestry of these islands, and to challenge the etymology of Brexit as a unified ‘British Exit’ from the EU.

By way of a closing remark, the vote on Thursday stands likely to deliver fresh impetus into the Brexit process; where that process will end, however, remains uncertain.  

Final-Year-Law student, Naz Khan, is the first Staffordshire University student to have had an academic publication in The Legal Cheek.

Drawing on contemporary examples, the article focuses on how things, such as social media and ‘Citizen Journalism’, threaten a legal principal of the UK’s Human Rights Act: ‘the presumption of innocence’.

“Sometimes there can be smoke without fire, says Staffordshire University law student Naz Khan”

In the article, Naz explains that ‘the presumption of innocence, an integral part of the right to a fair trial, exists as a guarantee of an individual’s innocence if and until they can be proven guilty beyond reasonable doubt in a court of law. And as we all know, the burden of proof lies with the prosecution. But the presumption is systematically ignored as the cases of Sir Cliff, Jackson and many others demonstrate. The media publishes names, and commentators on social media defame.’

The Legal Cheek is a online news source for junior lawyers and law students and it is a great achievement and experience for a student to have their article published.

Naz has said he is “very grateful to be the first ever student from Staffordshire University to have an article published in Legal Cheek. For students it is very difficult to get their work out there. I hope that by having a publication to my name that this will pave the way for other students and encourage them to pursue academic writing”.

Read the full article on The Legal Cheek here.