Devolved powers and EU withdrawal: Scotching the worst impacts of Brexit?

European Union LAW ANALYSIS.

The modern concept of Devolution in the United Kingdom was devised, created and implemented in the general context and expectation of continued UK membership of the European Union. Scotland, Wales and Northern Ireland were all granted various levels of legislative and executive autonomy under a set of constitutional statutes of the UK Parliament (Scotland Act 1998 (SA 1998), Government of Wales Act 1998 (GOWA 1998)(now the Government of Wales Act 2006 (GOWA 2006)) and Northern Ireland Act 1998 (NIA 1998)). These laws created a certain level of asymmetry in the scope and range of powers exercisable by the nations of the United Kingdom, however they all shared one common feature - devolved legislative and executive powers could only be exercised in a way that is not incompatible with the UK's international obligations, particularly as regards the law of the European Union (Sections 29(2)(d) and 57(2) SA1998, Sections 58A and 108A(2)(e) GOWA 2006 and Sections 6(2)(d) and 24(1)(b) NIA 1998).

Background to Devolution

Scotland's devolution arrangements were always predicated upon a reserved model of devolution. Such a  system provides that the Scottish Parliament is free to legislate on any residual matter, other than those matters that are explicitly retained by the UK Parliament. The matters that are explicitly retained by the UK are set out in section 29(2) of the 1998 Act. This provides that the Scottish Parliament cannot pass laws that apply extraterritorially, relate to reserved matters, attempt to change the terms of certain Acts of the UK Parliament (including the European Communities Act 1972), are incompatible with the European Convention of Human Rights or EU law or are an attempt to remove the Lord Advocate as the head of criminal prosecutions and the investigation of deaths.

Notwithstanding the relative clarity of these terms, it has been judicially noted that there is of course some inevitable degree of overlap between the concepts (Martin v HM Advocate 2010 SLT 412, Lord Hope of Craighead at para 11 and Imperial Tobacco Ltd, Petitioner [2010] CSOH 134). Thus, the system of devolution itself sets out a detailed process for determining whether a proposed Scottish law is within or outwith the legislative competence of the Scottish Parliament. More generally, the notion of devolution presupposes that the UK Parliament, as the only sovereign Parliament for the whole of the UK, is competent to legislate in any matter, devolved or reserved (Section 28(7) SA 1998).

The Devolution settlement for Scotland and Wales, at inception, was always subject to the, admittedly theoretical, possibility that it could be simply reversed by a subsequent Act of the UK Parliament. However, both the Scotland Act 2016 and Wales Act 2017provide for a more permanent arrangement, whereby the Scottish Parliament, Scottish Government, Welsh Assembly and Welsh Government are now treated as permanent features of the constitutional landscape of the United Kingdom (Section 63A SA 1998). This strengthening of the centrality of devolution to the fundamental tenets of the UK constitution also resulted in significant changes to the interplay between the Scottish Parliament and the UK Parliament. The Scotland Act 2016 now provides that the Sewel Convention, the constitutional convention that the UK Parliament will not normally legislate for Scotland in devolved matters without the consent of the Scottish Parliament, is now statutorily recognised (see Section 28(8) SA 1998).

In the two decades of Scottish devolution, hundreds of Sewel conventions have been granted by the Scottish Parliament.

The slim UK vote to leave the European Union on 23rd June 2016, poses significant issues and implications for Scottish devolution. The Scottish population overwhelmingly voted to remain in the EU (62%), however the UK Government is committed to leaving the EU on terms that mean the UK no longer accepts the jurisdiction of the ECJ, leaves the EU Single Market and the EU Customs Union and ends payments to the EU budget. The Scottish Government was therefore placed in an impossible position - it had to respect and defend the democratic will of the Scottish people to stay in the EU and its economic and legal structures, within the confines of the overall desire of the entire UK to leave the EU.

The Scottish Government, from the immediate aftermath of the EU Referendum, was committed to engaging with the UK Government in reaching an acceptable compromise on the detailed terms of the UK's exit from the European Union. However, it later became clear that the terms of the UK's proposed Great Repeal Bill, and thereafter the EU Withdrawal Bill, were unacceptable to the Scottish Government. As a consequence, the Scottish Government intimated that it was likely the Scottish Parliament would be minded to refuse a Legislative Consent Motion (LCM) authorising the UK Parliament to enact legislation providing for the UK's exit from the EU. Such a refusal would have limited practical legal effect, since the UK Parliament has unlimited power to legislate and in particular, the Scottish Government has no power to enforce any refusal of an LCM against the UK Parliament (Miller v S. of S. for Exiting the EU [2017] UKSC 5], discussed here). Nevertheless, the refusal would have significant political effect. 

The Scottish Parliament refused to grant the LCM and the Scottish Government then pressed ahead with plans to create its own withdrawal legislation, in order to avoid a legal vacuum in the devolved statute book after the UK's exit from the EU. The Scottish Government put forward its alternative legislative proposal, the UK Withdrawal from the European Union (Legal Continuity) Bill 2018, on the 27th of February 2018. It was presented as emergency legislation before the Scottish Parliament and as such, the UK Government was not notified of the proposal, as is the normal convention.

As the law currently stands, Acts of the Scottish Parliament, as laws of a devolved legislature, do not enjoy an automatic presumption of legality, in contradistinction to the position of Acts of the UK Parliament (Imperial Tobacco Ltd v Lord Advocate 2013 SC (UKSC) 153 as per Lord Hope of Craighead). As such, legislative proposals of the Scottish Parliament are vulnerable to being attacked as being outwith the competence of the Scottish Parliament under two main lines of attack.

Firstly, Bills of the Scottish Parliament can be attacked as being effectively unconstitutional during the four week gestation period of a bill between its approval in the Scottish Parliament and being given Royal Assent (Section 32 SA 1998). The Advocate General for Scotland, the Lord Advocate or the Attorney General are entitled to challenge the legality of a Bill of the Scottish Parliament before the Supreme Court (Section 33 SA 1998).

Secondly, actual Acts of the Scottish Parliament are similarly susceptible to attack as being outwith the legislative competence of the Scottish Parliament before the Supreme Court (Section 29 SA 1998; AXA v Lord Advocate [2011] UKSC 46). 

The UK Withdrawal from the European Union (Legal Continuity) Bill 2018 was criticised by no less a figure than the Presiding Officer of the Scottish Parliament itself. The Bill attempts to remove the limitation on legislative power set out in section 29 of the Scotland Act 1998 as regards EU law. The Bill also purports to bring EU law into the devolved statute book by creating Retained (Devolved) EU law and gives the Scottish Minsters powers to amend such law where this is necessary to make the law coherent and consistent. The Bill also attempts to require that UK Ministers do not change certain aspects of Retained EU law without the consent of the Scottish Ministers.

When the UK leaves the EU, currently scheduled as the 29th of March 2019 under the UK Parliament's EU (Withdrawal) Act 2018 (Section 20), the provisions of the Scotland Act 1998 limiting the power of the Scottish Parliament and Government to make law and perform executive functions respectively, would be rendered nugatory. However, the Presiding Officer considered that this was a step too far: the Scottish Parliament will be fully subject to the limitation set out in section 29 until Exit Day. The Attorney General and Advocate General for Scotland completely agreed with this view and accordingly utilised their right to petition the Supreme Court for a judgment on the legality of the Scottish Parliament's Continuity Bill (Reference on UK Withdrawal from the European Union (Legal Continuity) Bill 2018).

Conversely, the Lord Advocate takes the diametrically opposite view, alongside the Attorney General for Northern Ireland and the Counsel General to the Welsh Government. These three legal officers consider that the Bill was squarely within the competence of the Scottish Parliament, notwithstanding the reservations expressed by the Parliament's Presiding Officer.

The Supreme Court, in a seven judge configuration, including of course the two Scottish justices (Lord Reed and Lord Hodge) heard the case on the 24th and 25th of July 2018 and delivered its judgment on the 13th of December 2018.

The challenge is without precedent: it is the first time, in the two decades of operation of the Scottish Parliament that both the Presiding Officer has questioned the competence of a Bill passed by the Scottish Parliament and the UK Legal Officers have exercised their legal right to send a question on the competence of a Scottish Parliament Bill to the Supreme Court.

The novelty of the case has thrown up some interesting legal questions.

First, it has to be remembered that this action before the Supreme Court is unique. It is not analogous to the many legal challenges that have been taken to the Supreme Court about the legality of devolved legislation (eg AXA v Lord Advocate [2011] UKSC 46) as opposed to bills. In the AXA case, Lord Hope at p. 142, stated that;

“in principle Acts of the Scottish Parliament are amenable to the supervisory jurisdiction of the Court of Session at common law".

This judgment is authority for the proposition that Acts of the Scottish Parliament are vulnerable to challenge under the limits to Scottish Parliament law making set out in section 29 of the Scotland Act 1998 and judicial review principles of the common law. However, he then went on to qualify this statement by noting that not all of the generally available judicial review grounds of challenge would be available to challenge the provisions of a public body such as Acts made by the Scottish Parliament since the Scottish Parliament was a democratically elected body with law making and tax raising powers and as such its laws would enjoy the highest legal authority.  Thus, challenges to laws of the Scottish Parliament could not ordinarily be taken on grounds of irrationality, unreasonableness or arbitrariness. Indeed, Lord Hope stated that the common law grounds of challenge could only ever be contemplated in extreme circumstances, such as where a law purported to violate the rule of law by closing off judicial review or the courts' ability to protect an individual's rights.

Although factually and legally correct, and intensely interesting, the Lord Advocate swiftly dispensed with this line of argumentation. These options for review are only appropriate for challenges taken against laws made by the Scottish Parliament. Legislative proposals before the Scottish Parliament can only be challenged in the 4 week window of opportunity according to the exacting terms of section 33 of the Scotland Act 1998. As such, it is argued that the question before the Supreme Court is not a nuanced one akin to cases seeking annulment of laws based on rule of law conceptions such as irrationality and arbitrariness in the exercise of powers stated in that law. Rather, it was submitted by the Lord Advocate that the question was simpler and binary in nature: is the Bill within the legislative competence of the Scottish Parliament, by not encroaching upon matters properly addressed by the UK Parliament or not?

If the question is indeed binary as suggested, then the substantive question turns on the notion of international relations and EU law as international law. Again, here the question may not be as complicated as argued by the UK Law Officers. The UK Law Officers argue that the Bill is not within legislative competence since the Bill cuts across fundamental sovereign powers only exercisable by the UK Parliament, namely the exercise of international relations. Succour for this line of argumentation comes from the Miller case, whereby the Supreme Court conformed that the triggering of Article 50 TEU fell squarely within the legal power of the sovereign Parliament of the UK (Miller v S. of S. for Exiting the EU [2017] UKSC 5). However, again here there is possibly a misunderstanding of the scope and nature of the powers purportedly being exercised in the Scottish Parliament's Bill. Of course, the contested Bill is concerned with EU law and the Scotland Act clearly prohibits the Scottish Parliament from acting in the international plane or to do anything interfering with the sovereign power of the UK Government and UK Parliament to both conduct relations with (and within) the EU institutions and to change UK law, notably the European Communities Act 1972, to comply with changed EU law obligations (such as additional Treaty obligations).

However, the Scotland Act is also concerned with a completely separate, internal aspect of EU law: the Scottish Parliament and Government cannot make law or perform executive functions in violation of EU law. This provision is actually designed to protect the UK from the legal consequences of devolved institutions acting, to borrow a delictual and tortious phrase, on a frolic of their own which will impute liability upwards to the UK. This limitation on power set out in section 29 of the Scotland Act 1998 is vital and core to the very essence of the Scottish Parliament's function: an overwhelming majority of legislative activity in the Scottish Parliament is directed at complying with EU law and giving effect to EU law. At the inception of devolution at the tail end of the last century, the Scottish Parliament and Scottish Government were given power over any areas of competence not reserved to the UK Government and Parliament.  Most of these devolved powers were actually powers exercised at the EU level, on a shared basis with the member States - agriculture, fisheries, environmental protection, consumer protection etc.

Therefore, the Scottish Parliament was directly tasked with complying with EU law, but this 'internal' aspect of EU law in no way impugns the 'external' aspect of EU law, exercisable by the UK Government and Parliament. Relatedly, it has already been judicially recognised that the devolution institutions will experience a significant Brexit dividend - an entire swathe of restrictions on the competence of the devolved institutions will be completely expunged on Brexit day (see Miller). This 'internal' aspect of EU law directly concerns the Scottish Parliament and it would be nonsensical if the Scottish Parliament could not take measures to clarify the scope of how this fundamental shift in its competences is to operate.

The Lord Advocate also dispenses with the argument made by the UK Law Officers concerning the future contingency nature of the provisions of the Bill. The UK Law Officers argue that the terms of the Bill, as drafted would cause the Scottish Parliament to be in breach of its obligation not to undermine EU law as set out in section 29 of the Scotland Act 1998 by simple dint of the fact that the Scottish Parliament must comply with EU law right up to 11pm on the 29th of March 2019. The UK Law Officers set much store on the contingent nature of the power given by the Bill to the Scottish Ministers to bring into force such provisions once the Bill became law. This argument appears weak. Commencement orders are a perfectly natural feature of the UK legal landscape, both devolved and reserved. It is perfectly normal and legal for a legislature to anticipate future changes and to legislate accordingly. Further, if the said contingency never materialises, then it is simply the case that that legal power is never exercised and can be replaced or repealed.

A further objection to the proposed Bill was taken by the UK Law Officers to the effect that the Bill could not alter the terms of the Scotland Act 1998 as regards the restriction of legislative competence on the grounds of EU law compliance (section 29(2)(d) SA 1998). The Lord Advocate tersely rejected this argument as well.  The system of devolution generally provides that Acts of the Scottish Parliament can be used to modify Acts of the UK Parliament, where that UK law relates to devolved competences. This significant power is a well-established feature of the devolved landscape. Nevertheless, legally and practically there has to be limitations upon this power, otherwise the devolved Parliament would, at a stroke, have been transformed into an omnipotent, fully sovereign Parliament: An anathema to the very nature of devolution.

Thus, the Scotland Act 1998 does generally provide that an Act of the Scottish Parliament cannot be used to modify certain central tenets of the constitutional devolution framework as provided for in the Scotland Act 1998. To put it more simply, the Scottish Parliament cannot pass an Act of Parliament giving itself more power. However, the Scotland Act 1998 does allow for some modifications to take place (Schedule 4 SA 1998). For present purposes, para. 7 of Schedule 4 of the Act is central. This part of the 1998 Act provides that an Act of the Scottish Parliament can be passed to take out 'spent' provisions. The key argument facing the Supreme Court is the notion of when the references to the EU limitations on the legislative competence of the Scottish Parliament become spent. If the UK Law Officers are right, the Scottish Parliament cannot act to expunge the references to EU law limitations on Scottish Parliament competence until the UK leaves. Form the Lord Advocate's perspective this view is unduly restrictive. It binds the hands of the Scottish Parliament until Brexit Day and, given the inherent uncertainty over the exact legal implications of the UK's departure from the UK on the 29th of March 2019, the Scottish Parliament cannot act prospectively to arrange its affairs as regards Scots law (the devolved statute book) to manage and ensure an orderly, legally certain departure.

The final aspect of the case which is intriguing is brought about by the mere effluxion of time. At the time of passing the Bill in the Scottish Parliament, the UK Parliament had yet to pass its own legislative proposal for an orderly Brexit. But soon after the legal objection was made to the Scottish Bill, the UK Parliament's EU (Withdrawal) Bill received Royal Assent. This law provides for retained EU law to be created for the utility of the entire UK. However, of course, the Scottish Parliament objected to the terms of that law, refused a Legislative Consent Motion and proceeded to continue to attempt to enact its own continuity law.

A direct consequence of that fact was that the Scotland Act 1998 was then amended to add the terms of the EU (Withdrawal) Act 2018 into the list of laws in Schedule 4 that are unamendable by the Scottish Parliament. Thus, the practical result is that if the Scottish Parliament were to now try and introduce a Bill along the lines of the impugned Continuity Bill, that Bill would be clearly outwith the legislative competence of the Scottish Parliament. Thus, the Lord Advocate has craved that the Supreme Court consider the question of legislative competence as of the date of passing the Bill and not at a later date in time. If the Supreme Court were to look at the case as from a later date in time, then the reference has been of purely academic interest.

However, even if the Supreme Court looks back in time to the point of passing the Bill, the answer also becomes academic since the unamended Bill, from a practical point of view cannot be passed since it has been rendered otiose. The best the Lord Advocate can hope for now is that the Bill is characterised as being in legislative competence and that certain, now unlawful provisions of the Bill, can be expunged from it, allowing the legislative proposal (as amended) to be turned into an Act of the Scottish Parliament.

This 13th december 2018 morning’s judgment is a clear vindication of the Lord Advocate’s position. The court was unanimous that, at the point in time when the Bill was passed in the Scottish Parliament, the entire Bill was within the legislative competence of the Scottish Parliament, with the sole exception of section 17 of the Bill. However, time marched onwards such that, at the time of this judgment, some of the legal space about to be occupied by the Scottish Bill was now occupied by the law of the sovereign Parliament of the United Kingdom. As such, the court therefore qualified its decision and recognised the clear legal reality pertaining at the date of the judgment - certain provisions of the Bill were now rendered otiose and legally impermissible as a direct result of the coming into force of the terms of the UK Parliament’s EU (Withdrawal) Act 2018. Thus, it is in part a pyrrhic victory for the Lord Advocate. The Bill, as presented at the time of progressing to Royal Assent was predominantly within the legislative competence of the Scottish Parliament. However, large sections of the Bill now fall away since they are in direct conflict with the terms of the 2018 Act and are thus outwith legislative competence of the Scottish Parliament.  

In these uncertain times, it is absolutely certain that there will now be interesting conversations regularly taking place between HM Government and the Scottish Government to resolve this legal conflict.

Kiggundu Henry.Esq. Director,Legal Affairs and Investigations, Legal Link International. Comments about this publication are welcome at lli.official256@gmail.com

USA HUMAN RIGHTS VIOLATIONS 2017 REPORT

The strong civil society and democratic institutions of the United States were tested in the first year of the administration of President Donald Trump. Across a range of issues in 2017, the US moved backward on human rights at home and abroad. 

Trump has targeted refugees and immigrants, calling them criminals and security threats; emboldened racist politics by equivocating on white nationalism; and consistently championed anti-Muslim ideas and policies. His administration has embraced policies that will roll back access to reproductive health care for women; championed health insurance changes that would leave many more Americans without access to affordable health care; and undermined police accountability for abuse. Trump has also expressed disdain for independent media and for federal courts that have blocked some of his actions. And he has repeatedly coddled autocratic leaders and showed little interest or leadership in pressing for the respect of human rights abroad.

The individuals most likely to suffer abuse in the United States—including members of racial and ethnic minorities, immigrants, children, the poor, and prisoners—are often least able to defend their rights in court or via the political process. Many vulnerable groups endured renewed attacks on their rights during the year. Other longstanding US laws and practices—particularly related to criminal and juvenile justice, immigration, and national security—continued to violate internationally recognized human rights.

Harsh Criminal Sentencing

On any given day in the US, there are 2.3 million people in state and federal prisons and jails, the world’s largest reported incarcerated population. Concerns about over-incarceration in prisons—partly due to mandatory minimum sentencing and excessively long sentences—have led some states and the US Congress to propose reforms. At time of writing, a bipartisan proposal for sentencing and corrections reform was gaining momentum in Congress, but the Trump administration had given no indication of support.Thirty-one US states impose the death penalty. At time of writing, 23 people in eight states had been executed in 2017, all by lethal injection. Debate over lethal injection protocols continued, with several US states continuing to use experimental drug combinations and refusing to disclose their composition.

Racial Disparities, Drug Policy, and Policing

Racial disparities permeate every part of the US criminal justice system, including in the enforcement of drug laws. Black people make up 13 percent of the population and 13 percent of all adults who use drugs, but 27 percent of all drug arrests. Black men are incarcerated at nearly six times the rate of white men.

Police continue to kill black people in numbers disproportionate to their overall share of the population. Black people are 2.5 times as likely as white to be killed by police. An unarmed black person is five times as likely to be killed by police as an unarmed white person.

The Trump administration has expressed almost unconditional support for the prerogatives of law enforcement officers, scaling back or altogether removing police oversight mechanisms. The US Department of Justice began to discontinue investigations into, and monitoring of, local police departments reported to have patterns and practices of excessive force and constitutional violations.

The administration reversed an order from the Obama administration limiting acquisition of offensive military weaponry by local police departments. In a speech in July, President Trump encouraged officers to use unnecessary force on suspects. Congress introduced the “Back the Blue Act,” which would severely restrict civilians’ rights to sue police officers who unlawfully injure them.

Despite voicing concern over the opioid crisis, the Trump administration signaled an intent to re-escalate the “war on drugs” and de-emphasize bipartisan public health approaches to drug policy. Attorney General Jeff Sessions rescinded his predecessor’s Smart on Crime initiative, which had prioritized federal prosecutions of individuals accused of high-level drug offenses, reduced racial disparities in federal drug sentencing, and improved re-entry opportunities.

Youth in the Criminal Justice System

Nearly 50,000 youth age 17 and younger are held in juvenile prisons or other confinement facilities on any given day in the US, and approximately 5,000 more are incarcerated in adult jails or prisons. Every year, 200,000 people under 18 have contact with the adult criminal system, with many children tried automatically as adults.

The US continues to sentence children to life in prison without parole, although states increasingly reject its use: as of 2017, 25 states and Washington, DC had banned or did not use the sentence for children.

Poverty and Criminal Justice

Poor defendants throughout the United States are locked up in pretrial detention because they cannot afford to post bail. A 2017 Human Rights Watch report demonstrated that pretrial detention—often resulting from failure to pay bail—coerces people, some innocent, into pleading guilty just to get out of jail. A movement to reduce the use of money bail is growing in the US, with several states implementing, and others considering, reform.

Many states and counties fund their court systems, including judges, prosecutors, and public defenders, partly or entirely via fees and fines imposed on criminal and traffic defendants. The privatization of misdemeanor probation services by several US states has led to abuses, including fees structured by private probation companies to penalize poor offenders.

Rights of Non-Citizens

One week after his January 20, 2017 inauguration, President Trump issued an executive order to suspend the US refugee program, cut the number of refugees who could be resettled into the US in 2017, and temporarily ban entry of nationals from seven Muslim-majority countries. This and later versions of the order banning entry from various countries have been the subject of ongoing federal litigation.

In October, Trump signed an executive order resuming the refugee program but with new screening measures. The annual cap for refugee admissions for 2018 was set at 45,000, the lowest annual limit since Congress passed the Refugee Act in 1980.

On the back of rhetoric falsely conflating illegal immigration with increased crime, Trump also moved to make all deportable immigrants “priority” targets for deportation, penalize so-called sanctuary cities and states that have limited local police involvement in federal immigration enforcement; expand abusive fast-track deportation procedures and criminal prosecutions for immigration offenses; and increase the prolonged detention of immigrants, despite evidence, documented by Human Rights Watch and others, of abusive conditions in immigration detention.

In August, President Trump repealed a program protecting from deportation immigrants who arrived in the United States as children, putting hundreds of thousands of people who grew up in the US at risk of deportation. President Trump signalled he would support legislation that provided legal status for undocumented immigrants brought to the United States as children. However, in October the White House released a hard-line set of immigration principles and policies—including weakening protections for child migrants and refugees—it considers necessary components of any such legislative deal.

Some cities and states sought to increase protections for immigrants by creating funds for legal services, limiting local law enforcement involvement in federal immigration enforcement, and resisting efforts to defund “sanctuary” cities. Others sought to pass laws punishing such localities.

In December, Human Rights Watch reported on the impact of the Trump administration on immigration policies, profiling dozens of long-term residents with strong family and other ties within the US who were summarily deported. US law rarely allows for individualized hearings that weigh such ties, and most immigrants do not have attorneys to help them fight deportation.

At time of writing, seizures for deportation of undocumented people from the interior without criminal convictions had nearly tripled to 31,888 between the inauguration and the end of September 2017, compared with 11,500 during approximately the same period in 2016.

Right to Health

To date, attempts in Congress to repeal the Affordable Care Act (ACA)—legislation that has greatly expanded access to health care for millions of Americans—have failed. However, the Medicaid program, private insurance subsidies, non-discrimination protections for lesbian, gay, bisexual, and transgender (LGBT) people, and other key elements of the ACA remained vulnerable to regulatory action by the Trump administration.

The Trump administration’s opioid commission released an interim report endorsing numerous public health approaches, but did not recommend protecting Medicaid, which currently covers drug dependence treatment. The commission endorsed increased access to naloxone, the overdose reversal medication, but did not recommend that it be available over the counter, a potential game-changer in addressing the more than 90 deaths per day from opioid overdose in the US.

Around 1.5 million Americans live in nursing homes, where inappropriate and nonconsensual use of antipsychotic medications—for staff convenience or to discipline residents without a medical purpose—is widespread. To date, government agencies have not taken sufficient steps to end this practice.

Rights of People with Disabilities

The Trump administration’s proposed cuts to the ACA, which provides crucial services to people with disabilities, and a proposed rollback of accessibility obligations under the Americans with Disabilities Act, could undermine the rights of people with disabilities. In July 2017, a man with a psychosocial disability, William Charles Morva, was executed in Virginia, 2017, despite pleas from lawmakers and UN experts to commute his sentence.

A 2017 Ruderman Foundation study found that one-third to one-half of all use of force by police in the US involve people with psychosocial or intellectual disabilities.

Women’s and Girls’ Rights

President Trump, his cabinet appointees, and the Republican-controlled Congress rolled back some important women’s rights protections, domestically and in foreign policy, and pledged to dismantle others. Some state governments also eroded women’s rights by introducing new laws with absurd restrictions on women’s reproductive rights. Several high-profile media revelations related to sexual harassment and misconduct reinvigorated discussions around abuses suffered by women at work and in public places.

Congress passed legislation dismantling a rule protecting family planning funds in Title X, a national program that funds services to more than 4 million Americans, ensuring access to reproductive health care. The new legislation makes it easier for states to restrict Title X grants by creating eligibility requirements that could exclude certain family planning providers, like Planned Parenthood. This will leave many women without affordable access to cancer screenings, birth control, and testing and treatment for sexually transmitted infections.

Congressional proposals to repeal the ACA would have dealt a major blow to essential women’s health services, including by preventing the nongovernmental organization Planned Parenthood from receiving federal funding, and allowing states to limit insurance coverage for an array of essential women’s health benefits. Trump’s proposed federal budget also called for massive Medicaid cuts.

Trump also issued an executive order on “promoting free speech and religious liberty,” which will cut women off from access to reproductive health services. It invites agencies to issue regulations that would allow more employers and insurers to assert “conscience-based objections” to the preventive-care mandate of the ACA, which includes contraception. Religious employers are already exempt, and religious non-profits and certain closely held corporations also have accommodations. Following Trump’s order, the Department of Health and Human Services effectively reversed the contraceptive coverage mandate by expanding exemptions to cover nearly any objecting employer.

The White House announced in August that it would scrap an equal pay initiative that was to go into effect in 2018. As a result, large employers and federal contractors will not be required to provide disaggregated information about employees’ compensation to civil rights enforcement agencies. It also revoked executive orders that required federal contractors to comply with fair pay measures and a ban on forced arbitration of sexual harassment and discrimination claims. The Department of Education announced its intention to review and change guidelines on campus sexual assault, notably the Obama-era guidance on Title IX of Education Amendments Act of 1972.

Several states adopted highly restrictive laws on abortion and reproductive health. These include new bans on abortion in some circumstances or other restrictive measures in Texas, Arkansas, Kentucky, Iowa, Tennessee. Some states increased efforts to deny public family planning funds to providers who also offer abortion services. 

Despite these significant assaults on women’s human rights, the picture was not entirely grim. Congress passed the 2017 National Defense Authorization Act, which includes new protections for whistleblowers in military sexual assault cases and requires training on preventing sexual assault. Trump signed into law the Women, Peace, and Security Act of 2017, which aims to increase women’s participation in conflict prevention and security.

New York State’s 2017 law reform on child marriage dramatically reduces the circumstances under which children can marry.

Millions gathered for Women’s Marches in Washington, DC, and in cities around the world to demand equality and justice.

Sexual Orientation and Gender Identity

In the first five months of 2017, legislators in several states introduced more than 100 bills that would attack or undermine LGBT rights. In March 2017, North Carolina partially repealed a 2016 law requiring transgender people to use government facilities according to their sex assigned at birth and barring local governments from prohibiting discrimination against LGBT people. The 2017 provisions bar local governments from passing transgender-inclusive policies and prohibit local non-discrimination ordinances from protecting LGBT people until 2020.

In April, Mississippi enacted a law protecting individuals who discriminate based on their religious convictions regarding same-sex marriage, extramarital sex, and transgender people. 

Tennessee enacted a law permitting therapists and counselors to decline to serve LGBT people based on their religious beliefs.

At time of writing, 20 states have laws banning workplace and housing discrimination based on sexual orientation and gender identity, while two states prohibit discrimination based on sexual orientation but not gender identity.

National Security

President Trump made statements during the presidential campaign and once in office supporting the use of torture of detainees and other counterterrorism policies that would amount to violations of US and international law. Trump later backtracked on these proposals saying he would defer to Defense Secretary James Mattis, who was outspoken against torture, on interrogation matters.

In November, the Office of the Prosecutor for the International Criminal Court (ICC) requested judicial authorization to open an investigation into alleged war crimes and crimes against humanity committed in the armed conflict in Afghanistan, including by US personnel in secret detention sites in Afghanistan and elsewhere.

At time of writing, media reported that US forces interrogated detainees in secret prisons run by foreign forces in Yemen. Defense Department officials denied that abuses had occurred when US forces were present, although their statements did not preclude possible US complicity in torture. Following the reports, the Senate Armed Services Committee sent a letter to Mattis demanding an investigation into the matter. Mattis’ response remained classified at time of writing.

Trump promised to keep the US prison at Guantanamo Bay open and send new detainees there. The US continues to hold 31 men at the facility indefinitely without charge, nearly all of whom have been there for more than a decade. The Obama administration failed to release five that it had cleared for release. It claimed the remaining 26 could neither be prosecuted nor released but did not adequately explain the basis for these determinations or allow detainees to meaningfully challenge them.

The US continues to prosecute seven men for terrorist offenses, including the 9/11 attacks on the US, in Guantanamo’s fundamentally flawed military commissions system, which does not meet international fair trial standards. It also is holding three men who have already been convicted by the commissions.

Surveillance

Throughout 2017, the US continued to carry out large-scale warrantless intelligence surveillance programs without transparency or oversight. Authorities used Section 702 of the Foreign Intelligence Surveillance Act to target non-citizens (except lawful permanent residents) outside the country for warrantless communications monitoring and to “incidentally” gather large numbers of communications to or from people in the US.

Section 702 was scheduled to end at the end of 2017 unless Congress renewed it; at time of writing federal appeals courts had differing conclusions about the constitutionality of certain aspects of the law.

US surveillance of global communications under Executive Order 12333 remained shrouded in secrecy, with neither Congress nor the courts providing meaningful oversight. In January, the government disclosed procedures for the National Security Agency (NSA) to share data with domestic law enforcement agencies obtained by surveillance under the order. Documents disclosed to Human Rights Watch during the year revealed a Defense Department policy under the order sanctioning otherwise prohibited forms of monitoring of people inside the United States designated as “homegrown violent extremists.” The Defense Department has not revealed how it designates “extremists” or what types of monitoring may result.

In May 2017, the Trump administration approved a proposal that asks US visa applicants for social media handles and accounts from the past five years as part of its enhanced vetting process. The US also continues to assert broad authority to search electronic devices and copy data at the border without any suspicion of wrongdoing.

Freedom of Expression and Assembly

In one of his last acts in office, President Obama commuted the sentence of Chelsea Manning, a soldier who had received a 35-year prison term for disclosing US diplomatic cables to WikiLeaks and endured abuse while in custody. However, the US government continued to seek the extradition from Russia of Edward Snowden, the whistleblower who revealed the scope of US mass surveillance in 2013.

In June 2017, the Justice Department indicted NSA contractor Reality Winner for allegedly disclosing classified information about possible Russian government interference in the 2016 US election. Under current US law and contrary to international human rights law, Winner will not have a chance to claim that she made her disclosures in the public interest.

President Trump repeatedly criticized journalists and posted comments and videos denigrating them during the year, prompting concerns over the chilling of freedom of speech. In August 2017, the UN High Commissioner for Human Rights expressed concern that “freedom of the press” in the United States was “under attack from the President.”

Two UN experts expressed alarm about state legislative proposals seeking to “criminalize peaceful protests,” and a third described “a militarized, at times violent, escalation of force…” against protesters opposing the Dakota Access Pipeline. In August, a woman protesting at a rally held by white supremacists in Charlottesville, Virginia, was killed when a man allegedly drove a car into the crowd; the driver was charged with murder.

In July 2017, the US Justice Department served a warrant on a company that hosted a website used to coordinate protests at the inauguration, demanding information that included more than 1.3 million Internet Protocol addresses that could identify site visitors.

Foreign Policy

During his inaugural address, Trump articulated a vision of foreign policy that placed “America First,” vowing to defeat terrorism, strengthen the US military, and embrace diplomacy based on US interests. Some foreign dignitaries invited to the White House early in his presidency included those with poor reputations on human rights, including Egyptian President Abdel Fattah al-Sisi, Malaysian Prime Minister Najib Razak, and Turkish President Recep Erdoğan.

On his first full day in office, President Trump reinstated and dramatically expanded the Mexico City Policy, or “Global Gag Rule.” This strips US health funding from foreign nongovernmental organizations if they use funds from any source to supply information about abortions, provide abortions, or advocate to liberalize abortion laws. The expanded Global Gag Rule will have disastrous effects beyond previous gag rules—restricting some $8.8 billion in foreign assistance for health services such as family planning, maternal healthcare, and services to treat HIV, malaria, and tuberculosis in 60 countries.

Affected organizations cannot easily replace these funds, which help prevent millions of unintended pregnancies, unsafe abortions, and tens of thousands of maternal deaths. The US government also severed support for the UN Population Fund, limiting the agency’s ability to provide life-saving care for women and girls, often in crisis zones.

Secretary of State Rex Tillerson has sought to overhaul the US State Department’s structure by sharply reducing the State Department’s staffing and global role, including by requesting a 29 percent decrease in funding for the State Department and international aid.

In April, the US carried out a targeted military strike on the al Shayrat Syrian airfield in response to a chemical weapons attack that killed more than 80 civilians. The April strike was not accompanied by a clear strategy for continued engagement in Syria.

During his first foreign trip in May, which began in Saudi Arabia, Trump announced a US$110 billion weapons deal with Saudi Arabia, and pledged to address human rights concerns through “gradual reforms.” Secretary Tillerson voiced concern during the same trip about lack of free speech in Iran, while ignoring equally onerous restrictions in Saudi Arabia.

In June, the US Senate voted 53-47 against a proposal that would have banned $510 million in arms sales to Saudi Arabia because of its role in the conflict in Yemen; a similar measure garnered only 27 votes in 2016. Also that month, the Trump administration announced it might withdraw from the UN Human Rights Council (UNHRC) over purported bias against Israel, among other concerns.

In July 2016, the US Congress extended through 2019 its authority to freeze assets and ban visas of Venezuelan officials accused of abuses against anti-government demonstrators. In 2017, the Trump administration imposed additional sanctions on Venezuelan officials, including President Maduro, and economic sanctions that prohibit dealings in new securities that the Venezuelan government and its state oil company issue. President Trump’s August threat to use military force against Venezuela met with widespread criticism in the region.

In August, the State Department announced that it had re-allocated some of Egypt’s US assistance and had frozen additional monies and military assistance, subject to democracy and human rights conditions.

However, joint military exercises that had been on hiatus resumed the next day. After months of review, President Trump announced his administration’s new policy on Afghanistan, calling for more US troops, expanded airstrikes, and looser rules of engagement governing anti-Taliban combat operations. The policy also calls on Pakistan to do more to prevent terrorists from harboring there, and on India to play a more influential regional role.

Speaking at the UN General Assembly in September, Trump reaffirmed his commitment to an “America First” agenda and threatened to “totally destroy North Korea,” and referred to Iran as a “rogue nation” and to the Iran nuclear deal as an “embarrassment.”

The US did not publicly support calls at the UNHRC for a commission of inquiry into abuses in Yemen, but was active during negotiations and ultimately joined consensus on a resolution to create an international investigation.

In November, Trump traveled to Asia, visiting China, Japan, South Korea, and Vietnam while in the region for the ASEAN summit in the Philippines. During the trip, Trump boasted of his good relations with authoritarian leaders and did not publicly comment on core human rights concerns, including the Rohingya crisis.

As the fighting against the extremist group Islamic State (ISIS) in Iraq and Syria continued, the number of US airstrikes and the number of civilian casualties increased significantly with little acknowledgement by the Pentagon. Strikes also resumed in Libya and increased in pace in Somalia. Trump reportedly changed US policy for drone strikes outside conventional war zones to allow attacks on lower-level terrorism suspects in more countries, with less oversight, and greater secrecy. The CIA was reportedly granted authority to carry out covert drone strikes in Afghanistan.

The Trump administration was considering withdrawing from the UNHRC, primarily because of concerns about the body's membership and its dedicated agenda item on the Occupied Palestinian Territories. Although the council's membership includes some serial rights violators, this has not prevented it from successfully addressing a wide range of human rights issues.

LLI Reseearch and Policy.

Europe Is Making Its Migration Problem Worse

Analysis

By Kiggundu Henry. Esq.

The Dangers of Aiding Autocrats 

Three years after the apex of the Eurpean refugee crisis, the European Union’s immigration and refugee policy is still in utter disarray. In July, Greek officials warned  that they were unable to cope with the tens of thousands of migrants held on islands in the Aegean Sea. Italy’s new right-wing government has taken to turning rescue ships with hundreds of refugees away from its ports, leaving them adrift in the Mediterranean in search of a friendly harbor. Spain offered to take in one of the ships stuck in limbo, but soon thereafter turned away a second one. 

Behind the scenes, however, European leaders have been working in concert to prevent a new upsurge in arrivals, especially from sub-Saharan Africa. Their strategy: helping would-be migrants before they ever set out for Europe by pumping money and technical aid into the states along Africa’s main migrant corridors. The idea, as an agreement hashed out at a summit in Brussels this June put it, is to generate "substantial social-economic transformation" so people no longer want to leave for a better life. Yet the EU’s plans ignore the fact that economic development in low-income countries does not reduce migration; it encourages it. Faced with this reality, the EU will increasingly have to rely on payoffs to smugglers, autocratic regimes, and militias to curb the flow of migrants—worsening the instability that has pushed many to leave in the first place.

THE FIRST WAVE 

How did we get here? In many ways, European leaders are still grappling with the impact of the refugee crisis that has shaken the region since 2015, when record numbers of people landed in Greece, Italy, or Spain after crossing the Mediterranean Sea in rickety, overcrowded boats. Arrivals leaped from 60,000 in 2010 to 280,000 in 2014 to over one million in 2015. In 2014 and 2015 alone, more than 7,000 died while making the perilous journey across the sea, leading Pope Francis to describe the Mediterranean as a “vast cemetery.” Almost 80 percent of the newcomers sought protection from conflicts in the Middle East. A smaller contingent came from central Africa, the Horn of Africa, and countries such as The Gambia, Nigeria, and Senegal, most without an entry visa.

 

Still recovering from the 2008-09 global recession, struggling to contain a debt crisis in Greece, and facing renewed fears of terrorism, the European Union was ill prepared to handle the new arrivals. Europe’s migration rules meant that gateway countries—such as Spain, Greece, and Italy—were disproportionately charged with processing asylum requests and were soon overwhelmed. Attempts to distribute asylum seekers more evenly across the bloc’s member states failed spectacularly. Meanwhile, populist far-right parties quickly gained ground across Europe, fomenting fears of an invasion by unassimilable refugees. Fearing political losses, centrist parties hardened their stances on immigration, promising to end the crisis.

Even though some leaders, such as German Chancellor Angela Merkel, initially took in many asylum-seekers, they quickly took steps to contain the number of new arrivals. In 2016, the EU struck a deal with Turkey, which tightened controls along its coastline and stemmed the tide of people crossing over to Greece in exchange for a pledge of six billion euros in EU financial assistance. Several countries, including Hungary, also put up fences along sections of their borders. As a result, the number of sea arrivals has declined sharply, under 70,000 over the first eight months of 2018. European leaders nonetheless remain anxious to discourage further arrivals and are looking southward across the Mediterranean for solutions.

  DON'T MOVE 

So far, Europe’s response to migration from Africa is taking two forms. First, in what some governments have billed as a “Marshall Plan with Africa,” Europe is recalibrating its development assistance to eliminate some of the “root causes” of migration, with a focus on education, unemployment, and high fertility. Second, and more immediate, the EU is clamping down on African migration through ramped up border security, data collection, and technical aid to African strongmen such as Sudanese president Omar al-Bashir and various Libyan militias. Yet neither of these two strategies will work—at least not in the way leaders in Brussels or Berlin intend.

For one, this is a matter of demographics. Today’s most mobile people are not Africans but Europeans themselves, who make up 8.25 percent of the world’s emigrant population against Africa’s 2.89 percent. And of the sub-Saharan Africans who do move, the vast majority stay in Africa. A small number live in refugee camps; most others move to neighboring countries to support their families, with little intention of ever migrating to Europe. This is likely to change, however. Sub-Saharan Africa’s young and fertile population, which today is about 40 percent larger than Europe’s, will be six times the size of Europe’s by 2100. Even if fertility rates drop soon, the momentum for population growth will continue as today’s children reach adulthood. Generating employment opportunities for them will require unprecedented economic growth—not just in one or two countries for a few years, but across the continent for multiple decades.

Europe’s proposed investments in African education, vocational training, and even infrastructure will not be enough to achieve the growth required to locally absorb the next generation of African labor. If anything, they will instead create conditions for further mobility: research suggests that economic growth in low-income countries tends to increase rather than reduce migration. As the UN special rapporteur on the human rights of migrants has pointed out, moving costs money, especially on risky and clandestine journeys. The most desperately poor are usually not in a position to bear these costs. Yet even modest increases in wealth and education provide more people with the resources and tools to move.

Eventually, economic growth will slow emigration, but those days are decades off: our analysis of UN data indicates that migration usually begins to fall only when a country’s GDP per capita reaches about $11,000—many orders of magnitude above most African countries’ current levels of development. Indeed, only a handful of countries on the continent are anywhere near this threshold. According to the World Bank, The Gambia’s GDP per capita in 2017 was a mere $483, Somalia’s around $500. Even Nigeria, the richest of the major refugee-sending countries in the region, still had a GDP per capita of under $2000.

In short, the legacies of colonialism, weak governance, and misguided aid policies will continue to push Africans to move for the foreseeable future. Some will be absorbed by wealthier states on their own continent, such as Botswana and South Africa. Yet both of these countries are increasingly hostile to African migrants. And as long as earning potential between Europe and Africa differs dramatically, some will head north. Even if the proportion of Africans on the move does not increase, their absolute number will.

KEEP OUT

This leaves European leaders with a choice: accept continued African migration or double down on efforts to shut European borders. So far, they have opted for the latter. Uneasy with the sight of migrants arriving on its shores, the EU has sought to prevent people from getting that far in the first place. In practice, this has meant empowering dubious partners to curb the movement of people across their territories. These efforts began long before the recent refugee crisis, with millions of euros paid to Libyan dictator Muammar al-Qaddafi to stop migrant boats from setting off from his country’s coast. Qaddafi was ousted and killed in 2011, but Europe’s deals with authoritarian leaders and militias persist: in 2017, the Italian government signed a new deal to strengthen Libya’s coastguard, even though the country’s security forces are known for rampant abuse and torture of migrants. A 2016 summit deal between European and African leaders in Malta offers another example of this strategy: the summit paved the way for a European “Emergency Trust Fund for Africa” of at least 1.8 billion euros to be spent by 2020. Almost all of this assistance is dedicated to countries feeding refugee streams across the Mediterranean, including Mali and Niger in the Sahel and Ethiopia, Eritrea, Somalia, and Sudan in the Horn of Africa. Needless to say, support to leaders such as Eritrea’s President Isaias Afwerki and Sudan’s ruler Bashir not only contains migration flows but also protects and strengthens broader patterns of authoritarian governance in the region.
In addition, the EU is seeking to externalize its border by pushing it southward: recent EU agreements have included calls to explore “regional disembarkation platforms”—centers in North Africa where migrants are processed before those who are deemed eligible for a visa or asylum are relocated to Europe. Yet the platforms remain a proposal, as some European parliamentarians, various human rights groups, and several African states have refused to support their establishment.

"Even if the proportion of Africans on the move does not increase, their absolute number will".

Even EU aid programs labeled as developmental tend to have a strong security component. Take, for example, the tens of millions of euros being sent to cities such as Agadez in central Niger, long a hub for smugglers and migrants en route to Europe. Although ostensibly intended to help the region’s poor by creating jobs in migrant transit areas, the plan for Niger is far more elaborate. By supporting law enforcement to close routes across the Sahara, it effectively bisects the country into north and south, putting a heavily militarized border across an invisible line that was previously permeable and largely unregulated. Europe is trying similar strategies in Mali and elsewhere by investing in both local development and coercive structures in a two-pronged attempt to hold people in place. Yet if the United States’ experience in trying to stem the flow of migrants to its southern border is anything to go on, enhanced border controls can only do so much to prevent people from moving. In fact, they often generate increasingly elaborate mechanisms to subvert such controls. And rather than weakening smuggler networks, the EU’s strategy of outsourcing its border control appears to strengthen them. Libya’s detention centers, where migrants are often bought and sold as slaves, are the most notorious example, but similar trends have emerged in Sudan and Niger, with state and state-like authorities forming profitable smuggling networks and partnerships. 

The EU-backed militarization of North Africa and the Sahel through patrols, deportations, and surveillance is not only costly, but enormously harmful to Europe’s global reputation and self-image as a region committed to human rights and the rule of law. Moreover, the EU has promoted speed and dexterity at the expense of accountability: because its Trust Fund for Africa is paid for through emergency mechanisms, almost none of these funds are subject to oversight by the European Parliament. Some politicians and civil society actors have called for increased democratic control, but given the sense of political urgency and the glacial pace of democratic decision-making at the EU-level, their calls will likely go unheeded. Meanwhile, the EU’s strategy of outsourcing its border control is making the bloc vulnerable to blackmail by authoritarian leaders: Libyan authorities are unhappy with the deal they have received, and have refused to “tak[e] in more illegal migrants.” Meanwhile, both Kenya and Tanzania have threatened to close large refugee camps and disperse migrants. Statements by Kenyan officials suggest that they may seek to replicate the model of the EU-Turkey deal and secure large amounts of funding from Western countries in exchange for limiting the flow of people to Europe.

Make no mistake: efforts to promote inclusive and equitable economic growth in Africa through vocational education, improved reproductive health, or enhanced institutional capacity could positively affect the region’s future. But continent-wide success will ultimately depend on the ability of some of the world’s most persistently stagnant and mismanaged economies to reform themselves. This, in turn, would require not tighter border controls across the continent but the opposite: open borders that allow for the movement of people and goods, expanded comparative advantages, integrated markets, and reduced tariffs. It would also allow those living under authoritarian rule to “vote with their feet” by moving elsewhere. In almost all cases—particularly in sub-Saharan Africa—these moves will remain local. Yet in absolute terms, the number of people heading to Europe will continue to grow.

EU leaders, meanwhile, should be careful what they wish for. Sustainable aid interventions can help set fragile states in sub-Saharan Africa on a path toward greater development and stability. But in the foreseeable future, these interventions will serve only to increase migration flows, not reduce them. And by relying on the cooperation of unaccountable, authoritarian governments with abysmal human rights records, Europe risks deepening political tensions south of the Mediterranean, ultimately undoing whatever progress its aid projects could bring. The regional bloc’s energies and funds would be better dedicated to creating significant legal and humane channels for African migration. These might include greatly expanded labor migration programs, opportunities for students and internships, and a credible visa lottery system to encourage people to secure documents before leaving home. Given Europe’s aging population, such efforts could be beneficial to both continents. If European leaders won’t do this for Africa’s benefit, then perhaps they will do it for Europe’s.