MS Risk Blog

Brexit: What Occurs When Article 50 is Triggered?

If the UK government sticks to its timetable, then Article 50 will be triggered by the end of this month. But how and when? And what happens next?

What is Article 50?

The referendum last June was the UK’s signal that it wants to leave the European Union, and Article 50 is the format notification of the UK’s intention to leave – effectively it is the start of the leaving process, which will last two years.

The article itself is a short, five-point text that was enshrined into EU law as part of the Lisbon Treaty in 2009. Prior to that, there was no process for leaving the EU. The text is vague, brief and is open to interpretation. Furthermore, it has never been tested before as no member has ever left the EU. Likewise there is no precedent, no patter to follow and therefore the process and procedures for leaving the EU are unclear.

How is Article 50 Triggered?

Due to the lack of precedent, the mechanics of triggering Article 50 are only now being discussed by officials in both London and in Brussels. The only requirement is that the notification is made in writing to the President of the European Council. Therefore it could be as simple as one line and sent in the form of an email, however given the enormity of the decision and the symbolism of the moment, it is likely that the UK government will make more of it. The notification letter may therefor include a reference to the UK government’s repeated desire that the EU remain a strong partner for Britain after Brexit. The letter could also be hand-delivered to the European Council building in Brussels. However by who it remains unclear, although it could be by Britain’s Ambassador to the EU, Sir Tome Barrow, or the Brexit Secretary, David Davis MP.

When Will Article 50 Be Triggered?

When to pull Article 50 is entirely up to the country that is planning to leave the EU. In the case of the UK, Prime Minister Teresa May has repeatedly indicated that she will do it by March. Time however is quickly running out, and the process have been further complicated by politics and sensitivities both in the UK and in Europe.

Domestically, politics between the House of Lords and the House of Commons has deployed the process. Only once the Brexit bill has been cleared by both houses and received royal ascent, will Prime Minister May be in a position to trigger it. However there are several dates which have been deemed as being inappropriate for a triggering.

• 15 March – All eyes will be on the Dutch election, which could be a potentially tricky day for the EU if anti-EU far-right candidate Geert Wilders does well. Triggering Article 50 on that day would also dominate the news agenda and could, potentially, influence Dutch voters. The result of the election will trickle in on 16 March, which will be another bad day to trigger Article 50.
• 25 March – This day marks the 60^th anniversary of the Treaty of Rome, which laid the foundations of the present-day EU. The heads of state from all EU members, with the exception for now at least the UK, will gather in Rome for a weekend of celebrations.

IS the UK Still a Member of the EU After Article 50 Has Been Triggered?

Yes, the UK will remain a member of the EU for precisely two years from the day the article is triggered. Therefore if Article 50 is triggered on 31 March 2017, then the UK would case to be a member of the EU at the end of the day on 31 March 2019. During this two-year period, the UK will remain bound by EU laws and regulations. It will also be entitled to near-full membership rights, however it must also honour its commitments as a member and those include financial. The only areas in the two-year period where the UK is excluded from EU affairs are when the 27 remaining countries are discussing the UK withdrawal or where they are discussing internal EU business.

Once Article 50 Has Been Triggered, Is there Any Turning Back?

Article 50 does not state whether it is reversible and EU lawyers have never pronounced on the issue.

Will Negotiations Between the UK and the EU Begin As Soon As Article 50 is Triggered?

No. There is a common misconception that in the first week after the triggering of Article 50, the two negotiators – Michel Barnier for the EU and David Davis MP for the UK – will face off across a table and begin negotiating Britain’s exit. It will not work like this for a number of reasons. Firstly, the EU side will need at least two months in order to draw up guidelines. The remaining 27 states will also decide on negotiating topics and re lines, which they will then feed into the EU Council. While the EU has already presented a united front on Brexit, it will quickly become clear that many of the negotiating topics and red lines are unique to individuals states. Subsequently things will become more granular, complicated and divided as the process goes along. It will be up to the European Council’s behind-the-scenes Brexit negotiation, Belgian diplomat Didier Seewus, to co-ordinate with the member countries and try to keep negotiations on track. Secondly, while Mr Barnier is the chief negotiator on behalf of the EU Commission, the negotiations will be carried out by large teams on both sides.

 What if the Withdrawal Process Takes Longer than the Designated Two Years?

 The exit clock to leave the EU effectively begins the moment that Article is triggered. Precisely two years later the UK ceases to be a member of the EU. During that period, the negotiations for the exit must be concluded. However this is an extremely unrealistic timetable to conclude such complicated negotiations and in reality, because of the time taken at the beginning and the end for the process to wind up and wind down the negotiations, the actual negotiating time will probably be only 15 months at best. The two-year Article 50 period can however be extended, and the UK continue to be an EU member, however only if all 27 remaining countries agree to it unanimously.

US Announces Decline in Illegal Immigrant Crossings

The United States government announced this month that the number of illegal immigrants crossing into the US from Mexico went down by 40% from January to February.

Homeland Security Chief John Kelly disclosed that the “change in trends” was the result of President Donald Trump’s tough policies. Mr Kelly disclosed that the number of “inadmissible persons” crossing the US-Mexico border had dropped this year from 31,578 to 18,762 in January to February – a period when the number of arrests of illegal immigrants usually increases. He disclosed that “since the administration’s implementation of executive orders to enforce immigration laws, apprehensions and inadmissible activity is trending toward the lowest monthly total in at least the last five years.”

New rules announced by the Trump Administration last month included plans to send undocumented people to Mexico, even if they are not Mexicans, and expand the criteria for immediate deportations. The government disclosed that the new guidelines would not usher in mass deportations, but were instead designed to empower agents to enforce laws that are already on the books. The president has also signed an executive order for an “impassable physical barrier” on the US-Mexico border and has insisted that Mexico will pay for it, despite its repeated refusals. The measures have been condemned by Mexico as being “hostile and “unacceptable.”

The president made immigration and border control a key part of his election campaign, promising to protect Americans from “bad dudes.” An estimated 11 million undocumented immigrants live in the US, many of whom are from Mexico.

Meanwhile on Monday 6 March, President Trump revised his travel ban, barring people from six mainly Muslim countries. The ban however has since faced its first legal challenge from the state of Hawaii. State lawyers have asked for an emergency block on the order, stating that the measure will harm its residents, businesses and schools.

While the revised measure removed some of the more controversial language on religious minorities, Hawaii Attorney General Doug Chin disclosed that it still constituted a “Muslim ban” due to the countries involved and past statements from the administration.

The directive, which includes a 120-day ban on all refugees, will take effect on 16 March. Citizens of Iran, Libya, Syria, Somali, Sudan and Yemen, the other six countries on the original 27 January order, will once more be subject to a 90-day travel ban. Iraq, which was listed on the original order, has since been removed from the list.

President Trump’s previous order was halted by the US federal courts amidst concerns that it unfairly targeted Muslims. It caused chaos at airports and mass protests.

Wikileaks Offers Tech Firms First Pick at CIA Files

Last week, Wikileaks announced that technology firms will get “exclusive access” to details of the CIA’s cyber-warfare programme. The statement comes after the anti-secrecy website published thousands of the US spy agency’s secret documents, including what it says are the CIA’s hacking tools.

On Thursday 9 March, Wikileaks founder Julian Assange stated that, after some thought, he had decided to give the tech community further leaks first. Mr Assange disclosed that “once the material is effectively disarmed, we will publish details.” US federal agencies have already launched a criminal investigation into the release of the documents.

In its first tranche of leaks, Wikileaks alleged that the CIA had developed what Mr Assange called “a giant arsenal” of malware to attack “all the systems that average people use.” Tech firms, including Apple and Google, have since stated that hey are developing counter-measures to combat any malware that the CIA may have developed. Mr Assange has disclosed that his organization had “a lost more information on the cyber-weapons programme,” noting that while Wikileaks maintained a neutral position on most of its leaks, in this case it did make a strong stance, stating “we want to secure communications technology because, without it, journalists aren’t able to hold the state to account.” Mr Assange also claimed that the intelligence service had known for weeks that Wikileaks had access to the material and done nothing about it.

On Thursday, Mr Assange also spoke more about the Umbrage programme, which was revealed in the first leaked documents. He stated that a whole section of the CIA is working on Umbrage, a system that attempts to trick people into thinking that they have been hacked by other groups or countries by collecting malware from other nation states, such as Russia. He noted that “the technology is designed to be unaccountable,” and claimed that an anti-virus expert, who was not named, had come forward to say that he believed sophisticated malware that he had previously attributed to Iran, Russia and China, now looked like something that the CIA had developed.   Mr Assange went on to say that “the type of attack system corresponds to a description we published of that attack system unless of course China has already got hold of these parts of the CIA arsenal and is using it to pretend to be the CIA,” adding that the intelligence agency could potentially be causing the tech industry “billions of dollars of damage.”

Poland Fails to Stop Tusk EU Re-Election

On Thursday 9 March, European Union (EU) leaders re-elected President of European Council Donald Tusk despite a bid to oust him by his home country Poland. The re-election came after earlier in the day Poland had threatened to derail Thursday’s EU summit as it attempted to bloc Tusk’s re-election.

Sources have indicated that the leaders voted 27 to one to give him another two-and-a-half-year term.

Arriving at the summit on Thursday, Prime Minister Beata Szydlo stated that nothing should be decided without Poland’s agreement. Ms Szydlo had also written a letter to EU leaders, stating that Mr Tusk has “violated multiple times his European mandate” by getting involved in Polish political disputes and supporting the opposition to the government. The EU has angered Poland’s nationalist government by criticizing changes to the country’s top court, new restrictions on journalists and it opposition to resettling refugees by quota. Meanwhile in an interview earlier with Polish television, Foreign Minister Waszczykowski stated that his country could even veto the summit’s conclusions to scupper Mr Tusk’s re-election. Prime Minister Joseph Muscat of Malta, which currently holds the rotating EU presidency, however suggested that Mr Tusk’s re-election could not be blocked, stating “one country, or a number of countries might be against that decision, but one country cannot block a decision…There are very clear rules of engagement and rules of procedure which we will follow.”

Speaking after EU leaders re-elected Mr Tusk to a second term, Poland’s Prime Minister stated that Mr Tusk’s re-appointment would damage EU efforts to recover after the UK’s departure and that it was a “question of principles” that any candidate for the post should be backed by his home country.

The ruling Law and Justice Party (PiS) implacably opposes Mr Tusk, who is a former minister from a rival party. While on the ground sources have indicated that such hostility among patriots is highly unusual in EU politics, Mr Tusk was expected to get enough support to keep his post. He had the backing of German Chancellor Angela Merkel, who said that his re-election to a new 30-month term would be a “sign of stability. As European Council president, Mr Tusk would be a major role in the UK’s Brexit negotiations.

Prior to Thursday’s vote, Poland’s government was desperate in trying to prevent Mr Tusk from being re-elected to a second term as president of the European Council. They went as far as to propose its own candidate – a little-known Polish MEP called Jacek Saryusz-Wolski.

There has also been some suggestion that the UK may abstain from the vote in a bid to win Polish support over Brexit negotiations. However ultimately all but Poland voted for Mr Tusk, with the Press Association news agency quoting UK government sources as saying that Prime Minister Theresa May was “pleased” that he had been re-elected.

Election in The Netherlands: After Brexit Second Chance For Populism

The Election Day is approaching in the Netherlands. First of a series of national elections that in the few months will help to decide the future for the European Union. The bloc’s two largest economies, France and Germany, will hold elections in two round for France (April and May) and September in Germany. Also Italy, depending on the status of its fragile governments, may join them. However, kicking it all off is the Netherlands, whose voters will go to the polls on the 15^th on March. In the Netherlands, as in many other EU countries, nationalist and Euroskeptic parties are performing well in opinion polls.

In recent years, elections in many European countries have shown that popular support for mainstream political parties is waning as anti-system and Euroskeptic forces are gaining popularity. The Netherlands, one of the wealthiest countries in Europe, is following this trend.

Its parliament is composed of numerous parties, and coalitions are often needed to form governments. According to opinion polls, in the coming election, the ruling People’s Party for Freedom and Democracy of Prime Minister Mark Rutte would win from 23 to 28 of the 150 seats in the Dutch parliament. This would be a significant decline from the 41 seats it won in the general election of 2012. Similarly, the Labor Party would win 10 to 12 seats, well below the 38 seats it obtained in the last election.

These votes could be lost in favor of the euroskeptic Party of Freedom, who according to January opinion polls could double its parliamentary representation, reaching between 29 and 35 seats (in 2012, it won only 15 seats). That party and its leader, Geert Wilders, want the Netherlands to leave the European Union (a so-called Nexit) and to reintroduce the guilder as its national currency. The party has a strong anti-immigration and anti-Muslim agenda, presenting itself as a protector of Dutch culture and identity.

With the financial crisis over in the Netherlands, the economy is growing and has faded as an election issue, so Wildres’ electoral campaign has been dominated for the most part by the issue of immigration. Wilders has vowed to ban Muslim immigration and shut mosques if he wins. He was also convicted in December in a hate speech trial over his promise to reduce the number of Moroccans in the country.

However, Wilders’ campaign is faltering, with immigrants who make up 30% of Dutch population. Concerning the EU issue, opinion polls suggest support for a Dutch “Nexit” in the months after the Brexit vote fell by 8% to 25%. Pollsters say people have realized that leaving the EU would be more complicated than they thought. Nevertheless, according to latest polls two weeks before elections he was still leading polls.

But even if the Party of Freedom performs strongly in the election, it would struggle to enter the government. Most mainstream Dutch political parties refuse to cooperate with Wilders and have said they will exclude the Party of Freedom from the negotiations to form a government. The Party of Freedom is the only major party advocating a Nexit; the rest of the political establishment remains committed to the Netherlands’ EU membership and its role as the heart of the process of European integration.