The UK’s “constitutional requirements” under Article 50 TEU

Co-authored by Richard Gordon QC

In the wake of the “leave” outcome of the European Union referendum on 23 June, a key focus of interest is upon the manner in which the United Kingdom can give constitutional as well as legal effect to that outcome. Law is a necessary constituent element of our constitutional arrangements although notions of constitutionality and legality do not always dovetail.

The most likely means of giving effect to the referendum result is within the framework provided by the Treaty on European Union (TEU). Article 50 TEU provides that a member state may decide to leave “in accordance with its own constitutional requirements” (TEU Article 50 para 1). After a two-year period, unless all Member States have agreed to an extension, the State in question ceases to be a Member of the EU (TEU Article 50 para 3). If an exit agreement comes into force sooner, EU membership can potentially end before two years.

The negotiations taking place during this period and their outcomes are clearly matters of critical importance. So too is the conceptual conflict between principles of direct democracy, as manifested through the referendum, and representative democracy, of which the UK Parliament is the primary organ. This recent paper, “Using the Prerogative for Major Constitutional Change: The United Kingdom Constitution and Article 50 of the Treaty on European Union”, focuses on the most immediate issue: the “constitutional requirements” that apply in the UK to the instigation of the Article 50 process.