Brexit and Art. 50: the Key lies in Luxembourg

The British people voted in their recent European referendum to leave the European Union. This has prompted the obvious question: what happens next? The answer has turned on the construction of Article 50 of the Treaty on the European Union (TEU), which provides the mechanism by which a Member State can leave the Union. The relevant text is as follows:

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

  2. A Member State which decides to withdraw shall notify the European Council of its intention.

There have essentially been two crucial questions in relation to the operation of Article 50: first, what are the constitutional requirements of the United Kingdom in relation to such a decision? Is it a prerogative power, exercisable by the monarch on foot of advice of the Executive Government, or does it require an Act of Parliament? There have been measured academic opinions arguing that it is a prerogative power and that it must be passed by Parliament. Second, and relatedly, how should notification issue to the European Council?

A law firm, Mishcon de Reya, have now indicated their willingness to test these questions in court. There is currently a debate about whether the litigants in the case have standing to bring a case in the first instance, although as Thomas Fairclough has argued the courts have the power to determine whether a prerogative exists. Fairclough ultimately argues that although the courts have the power to hear the case, they may conclude that they do not have the power to challenge the exercise of the prerogative except in exceptional circumstances: ‘within the furthest reaches of Wednesbury’. What has not been fully appreciated is that this challenge could end up being litigated in the European court system, and not merely in the UK ...

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