We are reading a lot these days about Brexit but have been mildly distracted with internal party politics and the search for a new Prime Minister. Now, that this is sorted and Theresa May is in charge it is worth reminding her of the trigger of this government reshuffle: The referendum vote to leave the European Union.
It is now down to the newly formed government to set the process of withdrawal from the European Union in motion. In order to do so, we have been told, somebody needs to trigger Article 50 of the Treaty on European Union (TEU). It has been all over the news, 1.000 barristers are demanding a certain process to be upheld, the EU refuses to negotiate with the UK until this has happened, so this particular trigger seems to be somewhat important.
While the word trigger encourages us to think of Article 50 as a big red button on somebodies desk, it is far less exciting. It is a mere legal instrument, a contract clausal so to speak, that is outlining the process of withdrawal from the European Union. Such a formal option did not exist before the Lisbon Treaty came into force in 2009 and it will be the first time this formal process will have been followed.
The core of the Article 50 debate lies in its first sentence:
“Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”
The last two words are the source of all debate: What are the constitutional requirements in the UK to make such a decision?
There seems to be agreement that the referendum decision as such, does not automatically trigger Article 50. This is down to the legislation that was set in place to have a referendum giving it only advisory character and no binding force.
Now, the UK’s parliament is the sovereign legislator. There is consequently the argument that following the referendum vote a parliamentary debate should be held and that parliament will then have to trigger Article 50 by confirming the people’s vote and the UK’s intention to withdraw from the European Union. This would make parliament press the invisible big red Article 50 button.
Having said that, others argue that “constitutional requirement” means the Government, applying the royal prerogative, can trigger Article 50 without any parliamentarian agreement. Government is the UK’s executive which also acts on behalf of the Monarch exercising certain prerogative powers. Using these executive powers, Theresa May, as Prime Minister, can pass an executive order which can then trigger the withdrawal process.
It is a bit messy but why does it matter? What is standing at the heart of this is not a European Union Law issue but an internal struggle for Great Britain to find clarity it its very own domestic constitutional order. It shows how this constitutional framework is by its nature flexible and open to change but also very opaque when it comes to constitutional challenges like this one at hand. Other legal frameworks, which rely on a codified (written) constitution can simply refer to their constitutional code to decide what constitutional requirements mean.
The UK, however, and its uncodified constitution, need to assess its complicated constitutional history. It needs to look at those written aspects, e.g. the Magna Carta, and the scale of unwritten principles, e.g. parliamentary sovereignty, conventions and prerogatives to figure out what the constitutional requirements are.
It is no wonder that nobody so far made a quick move regarding Article 50 as nobody has seen the constitutional wood for the trees so far!
UPDATE: On March 20th, 2017, Downing Street announced that Theresa May would trigger Article 50 on Wednesday, 29th March. See a follow up article - Pulling the trigger on Article 50.
The opinions expressed in this article are those of the individual author, and do not represent the views of The Open University.