Everything you need to know about Article 50 (but were afraid to ask)

Most people will have never read a single article of the Treaty on European Union (TEU) before they stumbled recently across Article 50. Alas, those ‘most people’ seems to include many British lawyers and politicians whose acquaintance with the constitution of the European Union has been hitherto remote. So here is my guide to Article 50.

The need to include a secession clause in the Constitutional Treaty (2003) and then the Treaty of Lisbon (2007) was upheld both by the federalists and by their opponents. Federalists saw the need to have a safety clause in the new treaty that would allow a let-out for any current member state which fought shy of accepting the leap forward in European integration that was at that time postulated. The UK government, aware of the risky nature of its ever-increasing exceptionalism, wanted a clause that would prevent the abrupt expulsion of an awkward member state by the mainstream majority. That said, none of us in the Convention ever expected the provision actually to be used – which might explain its relatively sketchy character. So it is vital to analyse very carefully what the clause says, why it says it, and how it is now to be deployed.

Article 50(1) says:

Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

The European Court of Justice (CJEU) could well be asked to verify that the UK has acted ‘in accordance with its own constitutional requirements’. It will look at the British EU Referendum Act 2015, which legislated that a referendum ‘is to be held’ on whether the UK should remain a member of the EU.[1] No threshold was set either for turnout or for a qualified majority. Although it is said by in-denial Remainers that the referendum was ‘merely advisory’, the Act made no stipulation for the UK Parliament to approve, deny or second-guess the outcome of the referendum ...

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