UKHRB Roundup 20-4-2020: Coronavirus and a Labour party leak

20 April 2020 by Rosalind English

In the news

COVID-19 continues to dominate the news this week. The death toll in Europe has now risen to over 100,000, with the UK accounting for more than 16,000 of those. Although there appear to be signs that the infection curve is slowing elsewhere in Europe, and vaccine trials are now underway, it seems likely that we are in this for the long haul. UK government chief scientific adviser Patrick Vallance has written in the Guardian this week, explaining the challenges of ensuring any proposed vaccine is safe, and of scaling it up as required. 

Pressure is building for the government to publish the findings of ‘Exercise Cygnus’, a three-day flu pandemic readiness exercise conducted in October 2016, as critics note the government’s apparent ill-preparedness for the coronavirus outbreak. According to the Observer, the New and Emerging Respiratory Virus Threats Advisory Group (Nervtag) recommended that the government: 

• Develop a ‘pandemic influenza concept of operations’ to improve coordination between the ‘complex network of partners’ involved; 
• Plan for ‘legislative easements’ to deal with the pandemic; 
• Work on ‘better understanding of the public reaction to a reasonable worst-case pandemic’; and  
• Strengthen ‘surge capability and capacity in operational resources in certain areas’, especially in respect of excess deaths, social care, and the NHS. 

Lib Dem MP Philip Lee has urged Matt Hancock and Michael Gove to answer “when did they read the Cygnus report that has not been published and, having read that report, why did they conclude not to increase testing, PPE, and ventilator capacity in January?”. The Department of Health has insisted that the UK is “one of the most prepared countries in the world for pandemics.”

Concerns about criminal justice during the coronavirus pandemic continue. As the backlog builds up, DPP Max Hill QC has instructed the CPS to seek out-of-court solutions where possible, so as to limit the ‘expanding pipeline’ of cases waiting to be heard. Mr Hill and other voices such as James Mulholland, vice-chair of the Criminal Bar Association, have stressed the importance of deterrent sentences for offences related to COVID-19 and deliberate infection. However, ex-DPP Ken MacDonald QC has urged the courts not to mete out excessive jail term, arguing that prison is not the place for ‘nuisances’.    

Lockdown is causing serious damage to family life too. There has been a surge in urgent care proceedings in the family courts, as increased drinking, money worries, and domestic violence put vulnerable children at risk. Unicef has released guidance for authorities on the protection of children during the COVID-19 pandemic. In light of the rise in domestic violence, Home Secretary Priti Patel this week launched an urgent awareness campaign, pledging £2m for domestic violence charities and the Domestic Abuse Commissioner. 

In a rare piece of non-COVID-19 news, a Labour party report relating to the party’s anti-semitism problem was leaked this week. The report was completed in the last months of Corbyn’s leadership, and was intended to be submitted as annex to the Equality and Human Rights Commission inquiry. It alleges that appropriate handling of the anti-semitism problem was prevented by a “hyper-factional atmosphere prevailing in party HQ”, in which many staff were “bitterly opposed” to Jeremy Corbyn. Several leaked WhatsApp messages are included in the report, where staff refer to Corbyn supporters as ‘trots’, to former director of communications Seumas Milne as ‘dracula’, and to former chief of staff Karie Murphy as ‘medusa’ and a ‘birth-face cow’ who would ‘make a good dartboard’.

Those affected by the leak are reportedly contemplating claims under the Data Protection Act 2018, breach of privacy, and defamation. Keir Starmer has ordered an inquiry, examining both how the report was drafted and how it ended up being leaked, but this is likely to pose a difficult beginning for his leadership, and may undermine his plans to unify the party.  

The UK tourist who claims she was gang-raped by Israeli tourists in Ayia Napa, Cyprus, then coerced by police into withdrawing her claim and convicted of ‘public mischief’, has given her first TV interview. Her story will be told in an ITV documentary, ‘Believe Me’, which will explore testimony from her friends, who found after her the incident, and will examine ‘inconsistencies’ in the evidence given by the rape suspects. She says she is willing to take her case to the European Court of Human Rights to get justice. The Cyprus government continues to deny that she was a victim of a miscarriage of justice, or any coercion on the part of the Cypriot police. 

In other news 

• Outspoken human rights advocate Princess Basmah bin Saud bin Abdulaziz al-Saud has revealed on Twitter that she is under arrest, and called for Crown Prince Mohammed bin-Salman to release her. There has been no comment from him so far. 
• Fifteen more Hong Kong democracy activists have been arrested, in the largest crackdown since the start of the coronavirus pandemic. Those arrested include prominent figures such as Democratic Party founder Martin Lee (81), publishing tycoon Jimmy Lai (71), and former lawmaker Margaret Ng (72). The UK and US governments condemned the arrests, while the International Bar Association expressed concern that China was “encroach[ing] on fundamental human rights”.  Meanwhile, top Hong Kong judges have told Reuters that the independence of the judiciary in Hong Kong is under threat from the Chinese Communist Party. 
• Concern is growing that the Chinese authorities are using COVID-19 as a pretext for holding Chinese lawyer Wang Quangzhang under house arrest. Mr Wang was released on 04 April after serving four and a half years on the nebulous charge of ‘subversion of state power’. After 14 days of compulsory quarantine upon return to his home town of Jinan, he has as yet still not been released. Human Rights Watch, Amnesty International, and China Human Rights Lawyers Concern Group have all voiced strong criticism of China’s actions. 

In the courts 

The economic pressure of the COVID-19 epidemic is huge, and individuals and businesses alike are struggling. As administration, liquidation, and bankruptcy proceedings get underway, there may be many questions about what is fair and just for creditors. It is worth commenting, as such, on a couple of judgements that are outside the usual scope of this blog. 

These judgments relate to the recent administrations of Carluccio’s and Debenhams. In both cases, the administrators asked for directions from the court under paragraph 63 of Schedule B1 of the Insolvency Act 1986. 

• Carluccio’s Ltd, Re Insolvency Act 1986: it was confirmed that companies in administration can access the Coronavirus Job Retention Scheme (‘JRS’), under which the government will provide 80% of ‘furloughed’ employees’ salaries, up to a maximum of £2,500 per month. A question arose, however, as to whether, and under what conditions, administrators would be taken to have ‘adopted’ the contracts of furloughed employees. In other words, within paragraph 99 Schedule B1 of the Insolvency Act 1986, when would payments owed to those employees acquire ‘super-priority’ to the costs of administration and the claims of other creditors? Snowden J held that this would occur when the administrators make payments to the employees under their contracts of employment, or when the administrators apply under the HRS, whichever is the sooner.  
• Debenhams Retail Ltd, Re – the same question arose again, and Trower J confirmed his support for substantially the answer put forth by Snowden J. It is worth noting that the administrators claimed they could suffer a possible shortfall of £3m per month as a result, and might therefore have to make many Debenhams employees redundant, rather than furlough them. These decisions will no doubt be revisited in the months ahead. 

The Court of Appeal in Northern Ireland this week heard a case on the discriminatory impact of the same-sex marriage ban in Northern Ireland. 

•  the appellant had a same-sex marriage in London in 2014, which was treated as a civil partnership in Northern Ireland under Schedule 2 Part 1 paragraph 2(1) of the Marriage (Same Sex Couples) Act 2013. He sought a declaration that there had been unjustified discrimination – but since filing his claim, the Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) Regulations 2019 had abolished that discriminatory position. The court upheld the ruling in the previous case of Re Close that failure to recognise same-sex marriages in Northern Ireland only gave rise to unlawful discrimination from the period of summer 2017 onwards, and therefore there had not been a breach before then in respect of which the court could make a declaration. 

There was also a noteworthy judgement from the European Court of Human Rights, on the adequacy of DNA testing safeguards in the Serbian justice system: 

• Dragan Petrovic v. Serbia: the applicant had become a murder suspect, and the investigating judge had authorised that the applicant’s apartment be searched, and that a sample of his saliva be taken for DNA analysis; a sample was taken, but no match was found between the applicant’s DNA and the traces found at the crime-scene. The applicant alleged violation of Articles 8 and 6 ECHR, in respect of both the search warrant and the DNA test. The court held that there was no violation in respect of the search, which was necessary and proportionate, but that there was a violation in respect of the DNA sample, which was not ‘in accordance with the law’. This was because the effects of the domestic legal provisions were not foreseeable: there was no specific reference to DNA testing in Article 131(2)-(3) Code of Criminal Procedure which was used as authority for the judge’s decision. The court further noted that the Serbian government has implicitly acknowledged this point in the new Article 140 of the Code, which limits the use of buccal swabs to victims and those present at the scene of the crime. The claim under Article 6 was rejected on the basis that it was not a separate complaint.

On the UKHRB 

• Alex Ewing discusses a case on the impact of COVID-19 on prison conditions, Hafeez v UK 
• Law Pod UK looks at the Climate Change Act, Heathrow and HS2
• Rosalind English reviews concerns as to whether the latest coronavirus regulations are ultra vires  
• Nicholas Clapham explains the Council of Europe’s guidance to member states about derogation during the coronavirus pandemic  
• Sapan Maini-Thompson writes on a case about the UK’s liability for facilitating the imposition of the death penalty in a foreign state, Elgizouli v SSHD 
• Alice Kuzmenko comments on R (FNM) v DPP, a case where the DPP’s decision not to prosecute a rape allegation was found to be materially flawed
•  Hannah Noyce surveys the arguments over whether the lockdown is/ will have been lawful here
• … and listen out for the latest episode of Law Pod UK, due to go live this evening, in which Rosalind English discusses the legal implications and practical consequences of lockdown with Dominic Ruck-Keene and Darragh Coffey