Brexit at ALBA

From the seminars to dinner-discussions, Brexit was never far from the minds of those attending the annual Administrative Law Bar Association (“ALBA”) conference at St John’s College, Cambridge University this weekend.

Although the theme of the conference was judicial activism, a host of speakers addressed the issue of Brexit full on, including Thomas de la Mare QC and Naina Patel (Blackstone Chambers), Maya Lester QC (Brick Court Chambers), Dr Jeff King (UCL), Professor Catherine Barnard (Cambridge University) and David Allen Green (lawyer and journalist at Financial Times).

It was the talk of Professor Takis Tridimas, however, that was perhaps of greatest interest. There are three particular points that I want to draw out.

First, he proffered his view that unilateral withdrawal of Article 50 by the UK was possible. This is a point on which Derek Wyatt QC agrees, as set out in his evidence in the House of Lords Select Committee. Further, Charles Streeten has argued on the UK Constitutional Law Association Blog that “absent explicit provision to the contrary, the right to revoke a notification of the intention to withdraw from a treaty has customary status in international law”. I have my doubts on Professor Tridimas’ position. Allowing a Member State to trigger Article 50, then withdraw, then wait six months, then trigger Article 50 again – for the purpose of gaining leverage or otherwise – would, from the viewpoint of statutory construction, make a nonsense of Article 50 by emasculating the express provisions within. Arguably, once you pull the trigger you cannot recover the bullet.

Second, he posed the question of whether the UK-EU withdrawal agreement would have to comply with the general principles of EU law and the EU Charter of Fundamental Rights. Professor Tridimas wondered whether it would be possible for such an agreement to discriminate on the grounds of nationality among EU nationals. For example, would it be possible for Irish citizens in the UK to have preferential treatment over citizens from other EU states? For my part, this was not something that I had considered or a point I had even seen made before. In any event, it is an issue worthy of the most anxious scrutiny.

Finally, he focused on free movement of labour. He asked why, if the US Congress could prohibit intra-state movement of labour, the EU could not do the same. Indeed, one might ask what is it about the EU specifically that renders the free movement of labour more crucial than in a country characterised by federalism.

As is now customary when it comes to all issues surrounding Brexit, these discussions at the ALBA conference raised more questions than they answered. I have not sought to answer these three points made by Professor Tridimas. They are, however, issues we may have to face before long.