The Round Up – Article 50 and the first few days with Trump

27 January 2017 by Poppy Rimington-Pounder

The government trumped

Tuesday’s Supreme Court judgment held by a majority of 8 to 3 that an Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union.  This blog has covered the case in some detail – see Dominic Ruck-Keene’s post on the central issue in the appeal here, Jim Duffy’s post regarding the court’s findings on the status of the Sewel Convention here, and Rosie Slowe’s guest post on the enduring relevance of the question of the irrevocability or otherwise of an Article 50 notification here.

Trump’s inauguration trumped…but what now?

Donald Trump’s inauguration was met with a rather lukewarm reception on 21st January 2017 when almost 5 million people took to the streets to join the globally organised Women’s March.

The event is estimated to have attracted approximately 4.8 million people across 673 marches. It was organised in support of all those who had been targeted during Trump’s election campaign: not just women, but migrants of all statuses, Muslims and those of diverse religious faiths, people who identify as LGBTQ, people of racial minorities, and people with disabilities.

Trump himself seems untroubled by the protests, and responded the following day with a purportedly liberal and tolerant tweet: ‘Peaceful protests are a hallmark of our democracy. Even if I don’t always agree, I recognize the rights of people to express their views’.

Moreover, in no way has he been deterred from his objectives regarding certain women’s rights. Two days after the march took place Trump signed an executive order reinstating the so-called ‘Mexico City Policy’, also known as the ‘Global gag rule’. The policy bans all international NGOs in receipt of US funding from providing family planning services or even discussing them. It means that any NGO that provides or advises on such family planning services will either have to stop or give up their US funding – regardless of whether the funding is being used for this precise purpose. Not that this is an innovation on Trump’s part; it was first introduced by President Ronald Reagan in 1984, and has since swung in and out of US policy in step with the alternating Republican and Democrat presidents.

Yet Trump has gone further than previous Republican presidents: while he has reinstated an old policy, he has also expanded upon it so as “to implement a plan to extend the requirements of the reinstated Memorandum to global health assistance furnished by all departments and agencies”. This means that the executive order will not only apply to family planning funding through USAID (United States Agency for International Development) or the State Department, but to global health funding from all US governmental departments and agencies. PAI (Population Action International) has estimated that this will affect $9.5 billion worth of funding – more than 16 times the previous $575 million.

The Global Gag rule completely disregards women’s rights to have autonomy over their own bodies. Moreover, a report by a group of medical researchers from Stanford University in 2011 has suggested that there was a correlation between an increase in abortions in sub-Saharan Africa and the policy under George W Bush. They posited that, without NGOs’ family planning services and advice, more women fell pregnant inadvertently and then sought illegal and unsafe abortions.

While Trump may have assuaged the conservative spirits of his supporters in the US, his policies have widespread and serious implications for human rights elsewhere in the world.

In other news:

Another highlight from Trump’s first week in power included his first presidential interview on television with ABC News where he appeared to condone torture on the grounds that “we have to fight fire with fire”. He further asserted that he was not opposed to waterboarding and that torture “absolutely” works. His comments coincide with Theresa May’s trip to the US to discuss a post-Brexit trade agreement. MPs, including Labour leader Jeremy Corbyn, Liberal Democrats leader Tim Farron and Tory MP Sarah Wollaston, have called upon Theresa May to oppose Trump in advocating such a stance on torture. This comes not long after reports that May plans to campaign to leave the European Convention on Human Rights at the next general election. It might be thought that the Prime Minister is unlikely to allay fears regarding the future of the UK’s human rights given the choice of her latest ally.

On the other hand, the now former President Barack Obama, in one of his final moves before leaving office, had Chelsea Manning’s 35-year prison sentence commuted. Manning was convicted in 2013 of leaking classified information indicating human rights violations and crimes under international law on the part of the US military. There have subsequently been human rights concerns over her treatment, including her pre-trial detention conditions (which the UN Special Rapporteur on Torture held to be cruel, inhuman and degrading treatment), her solitary confinement following a suicide attempt, and the deficiency of treatment during her gender transition. Many have applauded Obama’s final gesture, but Manning herself has been critical. In an article published by the Guardian she lamented the former president’s reign as “eight years of attempted compromise” and called instead for an “unapologetic progressive leader”. She is expected to be released on 17^th May this year.

In the Courts: 

Belhaj and another v Straw and others: The Supreme Court upheld the Court of Appeal’s decision to allow Mr Belhaj to sue certain UK government officials, including the former Foreign Secretary Jack Straw. The Court found that the claims of UK complicity for illegal detention and mistreatment overseas at the hands of foreign state officials were properly triable in the English courts. The appellants had relied on the state immunity and ‘foreign acts of state’, but the appeal was dismissed. The Court unanimously held that state immunity could not result from the possibility that another state might suffer disadvantage to its reputation and that foreign acts of state would be justiciable if they concerned serious violations of human rights.

FirstGroup Plc v Paulley: The Supreme Court held that bus drivers were required to exert more pressure on passengers who refused to move and give up designated space for disabled passengers. Mr Paulley was appealing against a Court of Appeal decision which had held that it was unreasonable to expect FirstGroup to adjust its policy so that a driver should require other passengers to move. The Supreme Court allowed the appeal, but did not go so far as to say that drivers should require other passengers to move. They held that a policy of requesting passengers to move and then taking no further steps was inadequate, and that rather the driver ought to pressurise passengers further in such circumstances, perhaps by rephrasing the direction as a requirement or by refusing to drive on. Mr Paulley has since commented on how “delighted” he is with this “significant cultural change”. Some may think that this judgment does not go far enough, in that it does not actually guarantee people with disabilities the necessary space on public transport; others however, such as Clive Coleman (a legal affairs correspondent for the BBC), have expressed concern about the onus this places on bus drivers and the implications for other service providers. Indeed, bus drivers may be left unclear about how far this ruling now obliges them to act in such a situation.

Hutchinson v United Kingdom: The European Court of Human Rights upheld the right of UK judges to impose life sentences. The applicant, Arthur Hutchinson, was sentenced to life imprisonment in 1984 for rape, aggravated burglary, and three counts of murder. A minimum of an 18-year sentence was recommended and later the Home Secretary determined this sentence as one where ‘life means life’. Hutchinson claimed that the lack of any prospect of release was a violation of his Article 3 rights, constituting inhuman or degrading treatment. The Court however held that, following R v McLoughlin, life sentences were now considered to be reducible and the restrictive stipulations in the ‘Lifer Manual’ (the Indeterminate Sentence Manual) could not hinder the duty of the Secretary to consider all circumstances relevant to release on compassionate grounds. Life sentences could therefore now be regarded as reducible, in keeping with Article 3.

Osmanoglu and Kocabas v Switzerland: The European Court of Human Rights held that compulsory mixed swimming lessons for female Muslim students did not constitute a violation of Article 9. When they were fined for refusing to allow their daughters to participate in compulsory mixed swimming lessons, Aziz Osmanoglu and Sehabat Kocabas claimed that the requirement was a violation of their Article 9 rights granting freedom of religion. The Court acknowledged that there had been an interference with this right, but held that successful social integration of foreign pupils should take precedence and that the interference was proportionate to this legitimate aim; in so doing the national authorities had not exceeded the margin of appreciation afforded to them in the case of compulsory education.

by Poppy Rimington-Pounder