In the wake of the ‘leave’ outcome of the European Union (EU) referendum on 23 June, a key focus of interest is upon the manner in which the United Kingdom (UK) 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’ (Article 50 [1], TEU). 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 European Union (Article 50 [3], TEU). If an exit agreement comes into force sooner, EU membership can potentially end before two years.1 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. But the present paper focuses on the most immediate issue: the ‘constitutional requirements’ that apply in the UK to the instigation of the Article 50 process.
This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.