Was Theresa May's departure foreseeable


The United Kingdom will be the first country to leave the European Union. On June 23, 2016, a majority of 51.9 percent of UK voters voted to leave the EU. The question put to the vote was: "Should the UK remain a member of the European Union or leave the European Union?" To leave the EU, the UK must go through the procedure set out in Article 50 of the Treaty on European Union (TEU).

What remains unanswered is what is actually required to implement the result of the referendum. Above all, however, it is unclear what the much-cited statement "Brexit means Brexit" [1] means. From a legal point of view, what must follow a national decision to leave the EU? Neither UK referendum legislation nor the voting itself act in any way as a guide to what the UK's future relationship with the EU or any other country might look like. The question put to the electorate was binary and the electorate only voted to leave the EU. There was no approval of any particular exit agreement.

Some who voted to leave may want a "Norwegian-style" solution. That would mean membership in the European Economic Area (EEA), with access to the internal market and the associated freedom of movement. This solution is now colloquially known as "soft Brexit". [2] For other supporters of the Brexit, however, ending free movement and thus reducing immigration was crucial. However, these questions were not put to the public for election in the referendum.

Article 50 TEU

Article 50 is the provision in the TEU that regulates an exit from the EU. It was added to the TEU in 2009 through the amendments to the Lisbon Treaty and prescribes details of exit negotiations. It regulates how the EU has to shape its side of the negotiations and prescribes the voting modalities for an agreement (qualified majority) or for the extension of deadlines (unanimity). The article decides on the general conditions of the separation, but not on the details of a future trade relationship between the UK and the EU, which is to be regulated in a further agreement.

Immediately after the referendum, the UK did not make a formal exit request under Article 50 TEU, but will do so in early 2017, according to Prime Minister Theresa May. [3] Although the EU is urging the UK to act swiftly, waiting would have certain advantages: it would give the minister more time to formulate a negotiating strategy that does not currently exist (November 2016). The two-year period for resignation only begins with the formal declaration. Once the UK has made this announcement, it can be expelled from the EU after two years, even if no exit agreement has been concluded - unless there is unanimous agreement to extend the deadline.

Article 50 (1) of the TEU reads: "Each Member State may, in accordance with its constitutional requirements, decide to leave the Union." In the run-up to the negotiations, an understanding of what is meant by the "constitutional provisions" of the Member State concerned must first be developed. As a domestic matter, these rules cannot be dictated by the EU and must be governed by UK constitutional law. Unfortunately, British constitutional law is unclear on this, partly because there is no codified constitution in the UK - that is, no single document - that deals with the matter. Thus, the Brexit process is already complicated before Article 50 even takes effect. In any case, the "decision" passed by the British people in a referendum cannot be a "decision" within the meaning of Article 50. Something official is required. The Prime Minister claims that royal sovereignty gives the UK government the power to withdraw under Article 50 and that ministers are responsible for the negotiations. [4]

But what role does the British Parliament play in this? Under UK law, Parliament is involved in the ratification of treaties. So it would inevitably be involved, since with the exit from the EU, the law on the European Communities of 1972 would also have to be repealed. In the opinion of the Constitutional Committee of the House of Lords, Parliament can request that consent be obtained before the Prime Minister starts the procedure under Article 50 TEU. The Committee expressed this view in its report of September 2016. [5] If, as is often claimed, leaving the EU is about regaining self-determination and regaining parliamentary sovereignty, shouldn't Parliament play a key role in this process?

When Great Britain joined the European Communities in 1972, British relations with the EU and the interlinking of British law with EU law were regulated in one law. In the event of Brexit, Parliament will have to repeal this law and introduce new legislation. In the absence of a codified constitution and given that Article 50 has never been applied, the constitutional provisions are unclear. The fact that there is litigation on this is not surprising: numerous arguments have been put forward to justify why Parliament should be involved in the decision to initiate the Article 50 procedure, many of which were litigated in the High Court in October 2016 discussed. [6]