1 00:00:09,810 --> 00:00:18,510 The litigating rights conversation is a series we have every term in which we explore issues that arise for litigators in seeking 2 00:00:18,510 --> 00:00:25,830 to promote and protect human rights in a range of different places around the world and in a range of different fields of law. 3 00:00:25,830 --> 00:00:37,650 And I can't think of two people I would more like to hear on the question of litigating rights than Mark Heywood and my father, Mark Heywood, 4 00:00:37,650 --> 00:00:43,980 commenced sort of litigation work, I think, with the AIDS Law Project in Johannesburg in 1994, 5 00:00:43,980 --> 00:00:48,420 just at the commencement of South Africa's new democratic order. 6 00:00:48,420 --> 00:00:52,260 And he then became one of the founders of the AIDS Law Project, 7 00:00:52,260 --> 00:01:00,510 which has played a significant role in seeking to protect the rights of people living with HIV aids. 8 00:01:00,510 --> 00:01:12,600 And then in 2010 was a founder, member and director of Section 27, which is an NGO in South Africa, named after the provision in our Constitution, 9 00:01:12,600 --> 00:01:22,350 which protects economic and social rights in particularly in particular right of access to water, to food, to health care. 10 00:01:22,350 --> 00:01:28,860 And so those are the things he's going to be talking to us about today. 11 00:01:28,860 --> 00:01:35,730 Meyer is based here in the UK, and she is the director of the legal charity Reprieve UK. 12 00:01:35,730 --> 00:01:37,860 Some there may be people here in the audience. 13 00:01:37,860 --> 00:01:47,700 Yes, I see at least one who who has been one of the students from Oxford who served on one of the Bonaventure Summer Fellowships at Reprieve UK. 14 00:01:47,700 --> 00:01:55,020 She has been. She leads a team of lawyers seeking to protect people from grave human rights abuses and works, 15 00:01:55,020 --> 00:02:00,630 particularly in the field of the death penalty, rendition and torture. 16 00:02:00,630 --> 00:02:08,370 She is one of the reasons she's famous for her development of a strategy around attacking 17 00:02:08,370 --> 00:02:14,160 the supply of drugs used for the implementation of the death penalty in the United States, 18 00:02:14,160 --> 00:02:21,180 and she really was a very successful campaign for a number of years. 19 00:02:21,180 --> 00:02:31,110 So both Maya and Mark have been involved in thinking about how to protect and promote human rights not only through the use of law, 20 00:02:31,110 --> 00:02:38,400 but through a range of other mechanisms as well. And I think that's going to be the real focus of this evening's conversation. 21 00:02:38,400 --> 00:02:43,140 We're going to start off with each of them speaking for 15 to 20 minutes about their own careers, 22 00:02:43,140 --> 00:02:47,430 which will give us all a deeper understanding of who they are and what they've done. 23 00:02:47,430 --> 00:02:53,790 And then I'm going to ask them a few questions engage in conversation with them and then we'll open it up to the floor. 24 00:02:53,790 --> 00:02:58,140 So Mark, if I could ask you two to kick off? Thank you. 25 00:02:58,140 --> 00:03:06,660 Good evening, everybody, and thank you very much, Kate and Maya for the introduction and what Kate didn't say. 26 00:03:06,660 --> 00:03:12,600 I can describe myself as a litigator, but I'm not a lawyer. 27 00:03:12,600 --> 00:03:18,510 I think I'd probably fall under what you describe here as legal practitioners. 28 00:03:18,510 --> 00:03:27,150 I came to Oxford 36 years ago and studied English language and literature, and when people asked me, How did I end up in law, 29 00:03:27,150 --> 00:03:37,530 I say, Well, English literature teaches you how to read, and it also teaches you how to be a humanitarian. 30 00:03:37,530 --> 00:03:43,650 But it took the tutelage of a lawyer who was in the underground in South Africa, 31 00:03:43,650 --> 00:03:50,460 chap called Rob Petersen in an organisation called the Marxist Worker's Tendency of the ANC to teach me how to write 32 00:03:50,460 --> 00:04:00,450 because I think from law that you get a logic and an ability to write with a precision and with with the clarity. 33 00:04:00,450 --> 00:04:11,970 And so it's it's a little bit intimidating to speak here as a as a non-lawyer before an audience of presumably mostly lawyers. 34 00:04:11,970 --> 00:04:25,410 But I relish the opportunity to have a discussion about litigating rights at a time when I think the very idea of rights is under attack, 35 00:04:25,410 --> 00:04:35,100 both from some of our colleagues on the left who question whether it is radical enough and efficacious enough in 36 00:04:35,100 --> 00:04:46,260 bringing about deep change and obviously under attack from the right who question the very notion of of of of rights. 37 00:04:46,260 --> 00:04:53,490 So I hope that what Maya and I will persuade you of, and I don't think you need persuading in this in this particular audience, 38 00:04:53,490 --> 00:04:57,990 but we'll get to the nitty gritty of of strategy and tactics of of litigators, 39 00:04:57,990 --> 00:05:09,260 but is just about the power of rights as instruments for meaningful and and quite profound. 40 00:05:09,260 --> 00:05:17,950 Change, and certainly I never started out my legal life as a believer in law. 41 00:05:17,950 --> 00:05:30,100 I fell into law by accident, but I have become convinced of the power of law and of the power of litigation to to effect effect change. 42 00:05:30,100 --> 00:05:37,180 So. The subject of this evening's discussion is is litigating rights, 43 00:05:37,180 --> 00:05:48,520 I'm going to talk about litigating health rights in South Africa under South Africa's 1996 final 44 00:05:48,520 --> 00:05:56,260 constitution and the Constitution and the section of the Constitution in our Bill of Rights Chapter two, 45 00:05:56,260 --> 00:06:07,720 Section 27. As Kate has already mentioned, the deals with the rights of access to health care services has been pivotal in giving activists power to 46 00:06:07,720 --> 00:06:16,690 turn a set of promises on a piece of paper into something tangible in people's people's people's lives. 47 00:06:16,690 --> 00:06:21,250 But before I get to the actual litigation, 48 00:06:21,250 --> 00:06:33,340 I need to give you just a little bit of background about where we started and how it was that that health became one of the kind of touchstone issues. 49 00:06:33,340 --> 00:06:44,170 If you like to test the meaning of the Constitution for for poor people in South Africa and vote for disadvantaged people. 50 00:06:44,170 --> 00:06:55,630 So the first thing to say is that under apartheid, health was a marker of racial inequality. 51 00:06:55,630 --> 00:07:04,120 Spending on health differed according to race differed substantially according to race. 52 00:07:04,120 --> 00:07:08,530 And in apartheid categories, the most was spent on white people. 53 00:07:08,530 --> 00:07:13,570 The least was spent on black people. A little bit more was spent on so-called coloured people. 54 00:07:13,570 --> 00:07:20,530 A little bit more was. So there was a hierarchy of of of of expenditure on health. 55 00:07:20,530 --> 00:07:25,480 And obviously, if you have a hierarchy of of expenditure on health, 56 00:07:25,480 --> 00:07:35,860 you have a hierarchy of health outcomes because there isn't the health system to either prevent or to treat illness. 57 00:07:35,860 --> 00:07:41,680 So by the time we got to 1994 and freedom in South Africa, 58 00:07:41,680 --> 00:07:52,180 there were stark inequalities in life expectancy, in infant mortality and in epidemiology and epidemics. 59 00:07:52,180 --> 00:07:57,940 Black people, poor people, experienced epidemics of tuberculosis, 60 00:07:57,940 --> 00:08:05,140 which had existed for a century of sexually transmitted diseases because of 61 00:08:05,140 --> 00:08:12,700 migrant labour and the hospital system on the gold mines around Johannesburg. 62 00:08:12,700 --> 00:08:20,530 Many other causes of of of illness and then latterly from the nineteen middle of the 1980s, 63 00:08:20,530 --> 00:08:27,870 an epidemic of the human immunodeficiency virus or what we we we call HIV. 64 00:08:27,870 --> 00:08:38,320 And. That's the second point I want to make by way of setting a context for litigation, which is that. 65 00:08:38,320 --> 00:08:50,150 Nobody had planned for the HIV epidemic. Not the liberation movements, not the constitution makers are. 66 00:08:50,150 --> 00:08:58,460 And yet from about the mitt from about 1995, the HIV epidemic began to run very, 67 00:08:58,460 --> 00:09:07,280 very rapidly down the fault lines that had been created by apartheid inequalities again migrant labour system, 68 00:09:07,280 --> 00:09:17,750 gender inequality, gender violence, the hospital system, etc. so that as we were contemplating freedom in 1994, 69 00:09:17,750 --> 00:09:26,900 unbeknown to the vast majority of people, we by then had an explosive HIV epidemic. 70 00:09:26,900 --> 00:09:37,310 Very few people were aware of it at that point, because HIV has a long, asymptomatic period between infection and the development of immune. 71 00:09:37,310 --> 00:09:49,010 Symptoms of immune immune deficiency. But by 1994, we were looking we were projecting an epidemic of five million infections. 72 00:09:49,010 --> 00:09:52,340 In fact, today in South Africa, if you want the shocking statistics, 73 00:09:52,340 --> 00:09:58,220 there are seven and a half million people who live with HIV, and I'll come back to that. 74 00:09:58,220 --> 00:10:02,180 But I think what the this, you know, 75 00:10:02,180 --> 00:10:11,420 the health inequality and then the HIV epidemic meant was that unexpectedly you had this convergence 76 00:10:11,420 --> 00:10:19,150 of issues at exactly the same time as the Constitution making process and the immediate. 77 00:10:19,150 --> 00:10:25,460 Bringing into effects of the Constitution and the convergence of these issues. 78 00:10:25,460 --> 00:10:34,220 Issues which were fundamental rights in the constitution, but also fundamental to dignity and fundamental to equality. 79 00:10:34,220 --> 00:10:42,010 In fact, I personally had never planned to be an activist in the HIV epidemic. 80 00:10:42,010 --> 00:10:45,560 You know, I was involved in the liberation struggle from the time I was at Oxford. 81 00:10:45,560 --> 00:10:53,750 But by the early 1990s, when I was introduced to HIV, I realised that the HIV posed a new threat. 82 00:10:53,750 --> 00:11:03,830 At the very moment when people imagined freedom, a new threat to life and a new threat to equality and to and to dignity, 83 00:11:03,830 --> 00:11:08,150 and that it was something that we would we would have to deal with. 84 00:11:08,150 --> 00:11:15,890 So what happened was that when it came to testing the the Constitution, 85 00:11:15,890 --> 00:11:21,200 although the Constitution contains this provision, everybody has a right of access to health care services, 86 00:11:21,200 --> 00:11:23,630 including reproductive health care, 87 00:11:23,630 --> 00:11:31,310 which we often forget that including reproductive health care parts and says and it's a progressively realisable rights. 88 00:11:31,310 --> 00:11:40,190 Instead of this fight being around the amorphous notion of health care equality of health care services, 89 00:11:40,190 --> 00:11:50,630 it focussed initially on the lightning rod of the HIV epidemic and the needs of people living with HIV for access to treatment. 90 00:11:50,630 --> 00:11:57,590 And that, of course, was a life and death issue because by the middle of the 1990s or 96, 91 00:11:57,590 --> 00:12:05,570 just after we got our freedom, HIV was becoming a manageable and treatable condition in developed countries. 92 00:12:05,570 --> 00:12:14,600 But our epidemic was taking off and an HIV infection in 1997, 1998 or before almost inevitably meant death. 93 00:12:14,600 --> 00:12:23,800 And it also meant inequality because the only people who could get treatment in 97 or 98 were people who. 94 00:12:23,800 --> 00:12:29,110 Had the benefits of wealth and access to medical medical insurance, in fact, 95 00:12:29,110 --> 00:12:35,170 Kate and my colleague Edwin Cameron, Justice Edwin Cameron, who's just retired, 96 00:12:35,170 --> 00:12:45,700 many of you will know from the Constitutional Court a judge, an activist openly living with HIV at the point when Edwin started treatment in 1997. 97 00:12:45,700 --> 00:12:56,230 It cost four thousand rand per month for treatment today and I'll come to this treatment costs about 100 rand per month, 98 00:12:56,230 --> 00:13:00,310 and that is a lot to do with the with successful litigation. 99 00:13:00,310 --> 00:13:04,780 But at four thousand rand per month, there was no possibility of poor people having access. 100 00:13:04,780 --> 00:13:11,220 So if you were infected with HIV, for the most part, you died of of AIDS. 101 00:13:11,220 --> 00:13:17,490 And that was the basis on which we began to litigate the right of access to health care services. 102 00:13:17,490 --> 00:13:24,720 There isn't time to go into the organisational history or background, 103 00:13:24,720 --> 00:13:35,970 except that I want to say that it started with a legal litigation public interest litigation organisation called the Centre for Applied Legal Studies, 104 00:13:35,970 --> 00:13:43,380 where Edwin Cameron was based and where there had been litigation around political rights in the 1980s. 105 00:13:43,380 --> 00:13:49,050 So there was a there was a contact, there was a bridge, if you like. 106 00:13:49,050 --> 00:13:54,990 And in the first half decade for the 1990s, 107 00:13:54,990 --> 00:14:05,370 much of the litigation around rights focussed on rights related to equality to non-disabled non-discrimination. 108 00:14:05,370 --> 00:14:10,890 We had two very important cases which laid foundations successful cases. 109 00:14:10,890 --> 00:14:18,900 One that Edwin was involved in. The second that I was involved in. The first one establish the right to privacy for people in the health care setting. 110 00:14:18,900 --> 00:14:26,880 It was called the McGeary case and the second establish the rights of people living with HIV not to be discriminated at work. 111 00:14:26,880 --> 00:14:36,570 Kate, I think, was there for that. Known as the Hofmann case and very important judgement that we one where the Constitutional Court said, 112 00:14:36,570 --> 00:14:44,010 you know, nobody should be condemned to economic death because of of of HIV infection. 113 00:14:44,010 --> 00:14:54,700 But I don't really want to talk about those cases so much as. Around the cases linked to access to medicines and access to treatment. 114 00:14:54,700 --> 00:14:59,650 Partly because I think that in the context of this evening's discussion, 115 00:14:59,650 --> 00:15:06,310 that's the area where you can provide the most measurable results if you like. 116 00:15:06,310 --> 00:15:18,280 As as litigation outcomes, you can talk about the number of lives or deaths prevented as a result of that litigation. 117 00:15:18,280 --> 00:15:34,480 It's a long involved history, and I'm only going to talk about the kind of headline achievements and again, stress that without the Constitution. 118 00:15:34,480 --> 00:15:39,610 This would have been impossible, and I have to stress this because it's still in South Africa today. 119 00:15:39,610 --> 00:15:46,510 We have a debate with people who advocate for social justice and on the left about whether the 120 00:15:46,510 --> 00:15:53,680 Constitution is a sell-out and has can play any role in narrowing inequality and improving lives or not. 121 00:15:53,680 --> 00:16:02,230 And I think that we the proof is in the pudding as as I'll describe now when it comes to access to treatment. 122 00:16:02,230 --> 00:16:06,220 There are really there were really two streams to the litigation, 123 00:16:06,220 --> 00:16:14,710 and most of this litigation was brought by an organisation that I hope I helped to found, and I'm sure we will come to it. 124 00:16:14,710 --> 00:16:23,500 In the discussion about the link between social movements and litigation and social movements and lawyers. 125 00:16:23,500 --> 00:16:28,180 And it's a critical link, an organisation called the Treatment Action Campaign. 126 00:16:28,180 --> 00:16:33,400 But I would say that those two streams to litigating health rights were a stream 127 00:16:33,400 --> 00:16:42,160 around targeting corporates in relation to the affordability of medicines. 128 00:16:42,160 --> 00:16:47,440 And the second stream targeting the states around accessibility. 129 00:16:47,440 --> 00:16:54,340 The World Health Organisation says when it comes to medicines, you have to have availability, accessibility, affordability, all the necessary. 130 00:16:54,340 --> 00:17:05,750 Here we're talking about affordability and accessibility. Skilful litigation by the treatment action campaign in relation to affordability first came 131 00:17:05,750 --> 00:17:12,350 into effect to defend the piece of legislation that the South African government had passed 132 00:17:12,350 --> 00:17:19,550 to give them powers to issue compulsory licences to erode to some extent intellectual 133 00:17:19,550 --> 00:17:26,300 property law within the framework of the trips agreement of the World Trade Organisation. 134 00:17:26,300 --> 00:17:35,570 The South African government was busy losing that case, and the treatment action campaign came in and, through an amicus curiae, 135 00:17:35,570 --> 00:17:44,450 made it forced the pharmaceutical companies eventually to cut their losses and walk out of that case. 136 00:17:44,450 --> 00:17:47,780 The fact that the South African government then didn't use the powers that the 137 00:17:47,780 --> 00:17:51,740 legislation had gave them is perhaps something will come to in the discussion. 138 00:17:51,740 --> 00:17:56,480 The other thing I want to say about the novelty of of litigation around health rights, 139 00:17:56,480 --> 00:18:04,130 which I think the treatment action campaign demonstrated was its ability to apply other areas of law to constitutional law. 140 00:18:04,130 --> 00:18:13,520 So a very important case was brought in 2003, challenging to pharmaceutical companies and the competition law, 141 00:18:13,520 --> 00:18:20,870 arguing that excessive pricing of medicines was a violation of the rights of access to healthcare services, 142 00:18:20,870 --> 00:18:28,160 and that the state was under an obligation to intervene in the market where there was profiteering from essential medicines. 143 00:18:28,160 --> 00:18:33,080 And that case too was settled. 144 00:18:33,080 --> 00:18:43,520 But it was a critical case because as a result of that case, it became possible to issue voluntary licence licences for antiretroviral medicines, 145 00:18:43,520 --> 00:18:48,740 which meant that these four thousand random months went very quickly to several hundred grand a month, 146 00:18:48,740 --> 00:18:59,600 which meant that medicines became affordable within a few months and affordable to the state to supply through the public healthcare system. 147 00:18:59,600 --> 00:19:01,610 So that was that stream. And then the other stream, 148 00:19:01,610 --> 00:19:08,890 which those of you who have studied this will know much better is the case is around affordability that 149 00:19:08,890 --> 00:19:15,290 were brought by the treatment action campaign and the most famous case being what we know as the case, 150 00:19:15,290 --> 00:19:26,030 which was a case against the South African government who were refusing to provide a very simple regimen of antiretroviral 151 00:19:26,030 --> 00:19:36,050 medicines to pregnant women who had HIV and were at risk of giving birth to children with HIV who would die within the first year. 152 00:19:36,050 --> 00:19:44,210 In most, most instances, and we brought that case as the treatment action campaign, the lawyers with the legal resources centre. 153 00:19:44,210 --> 00:19:51,140 I sometimes forget that because I didn't work for the legal resources centre, I always talk about it as if it's our case. 154 00:19:51,140 --> 00:19:56,180 But they were very good lawyers and in particular because they allowed the client 155 00:19:56,180 --> 00:20:01,730 to run the show and the lawyers to do what lawyers are very good at doing, 156 00:20:01,730 --> 00:20:08,090 which is practise law and do what you ask them to do creatively with with law. 157 00:20:08,090 --> 00:20:13,130 But that was a very, very difficult, fractured case. I'll mention because we may come to it later. 158 00:20:13,130 --> 00:20:20,120 We brought it in the name of a doctor, a children's rights organisation and the treatment action campaign itself. 159 00:20:20,120 --> 00:20:26,450 And it led to a Constitutional Court order to the South African government to to roll out a programme 160 00:20:26,450 --> 00:20:32,480 to prevent mother to child HIV transmission and to make this particular medicine available now. 161 00:20:32,480 --> 00:20:40,610 If you want to quantify in lives, that's what that case achieved at the time that we brought that case. 162 00:20:40,610 --> 00:20:44,600 Seventy thousand children were being born with HIV every year. 163 00:20:44,600 --> 00:20:49,220 The rates of transmission was approximately 26 30 percent. 164 00:20:49,220 --> 00:21:00,960 Most of those children died. As a result of that case, and because of continued utilisation of that case by the treatment action campaign to this day. 165 00:21:00,960 --> 00:21:07,650 Now there are less than a thousand children born per year with HIV, 166 00:21:07,650 --> 00:21:15,000 and the rate of mother to child HIV transmission has gone down to under two percent of all pregnancies. 167 00:21:15,000 --> 00:21:23,490 And I think that is a result of successful utilisation of litigation by it, by a social movement. 168 00:21:23,490 --> 00:21:31,290 So the TAC case broke the resistance. The the competition law case made medicines affordable, 169 00:21:31,290 --> 00:21:43,860 and the two gave the treatment action campaign impetus and authority to demand treatment as a right for all people living with HIV. 170 00:21:43,860 --> 00:21:51,270 And on that wave, we now have five million people living with HIV, 171 00:21:51,270 --> 00:22:03,000 receiving antiretroviral medicine through the public health care system and therefore able to prevent the development of HIV infection into into AIDS. 172 00:22:03,000 --> 00:22:06,660 I believe there's a direct causal connexion. 173 00:22:06,660 --> 00:22:12,660 The causal connexion takes many forms. It wasn't just the pure instrumentality of the litigation, 174 00:22:12,660 --> 00:22:17,700 it was also the confidence that the litigation gave the sense of power, the sense of justification. 175 00:22:17,700 --> 00:22:28,950 So let me conclude just by by by saying this, I from this litigation litigating health rights, I draw the following conclusions. 176 00:22:28,950 --> 00:22:36,720 Firstly, I would make a number of statements about the intrinsic value of rights when it comes to litigation, 177 00:22:36,720 --> 00:22:47,970 and I would separate that into an intrinsic value that is both internal and external internal it legitimate rights advocacy. 178 00:22:47,970 --> 00:22:55,260 It gives powerless people a sense of power and authority, and I witnessed it with my own eyes. 179 00:22:55,260 --> 00:23:01,290 If you call something a right, it has a lot more power. It instils you with a belief in your cause. 180 00:23:01,290 --> 00:23:06,600 This is a this is a right, then something that is not a right and that's often neglected. 181 00:23:06,600 --> 00:23:10,050 It doesn't matter what the right spending is in law. 182 00:23:10,050 --> 00:23:20,250 Strictly speaking, if it's called the right and fought for as a right and believed as a right, then it will put an electricity into a movement. 183 00:23:20,250 --> 00:23:28,950 And the second is the the power without the what what you will know, the power that it allows people to force state to justify, 184 00:23:28,950 --> 00:23:36,880 to be transparent, the power of remedy and relief, the power of the power that comes with with accountability. 185 00:23:36,880 --> 00:23:42,630 And the second things I want to just quickly mention is about when we're talking about 186 00:23:42,630 --> 00:23:49,860 litigating rights is about issues to do with the process of use of of of litigating rights. 187 00:23:49,860 --> 00:23:55,080 And the point I want to make here is that we often talk about litigating rights as if it's 188 00:23:55,080 --> 00:23:59,940 the point where you issue your letter of demand that it stops when you get your judgement. 189 00:23:59,940 --> 00:24:09,420 I would argue that the process of litigating rights starts long before that and ends long after the judgement. 190 00:24:09,420 --> 00:24:16,860 You know you start threatening law, sometimes without any basis, to be honest with you. 191 00:24:16,860 --> 00:24:20,070 But you can do that long before the point. 192 00:24:20,070 --> 00:24:29,790 And we were doing it with the treatment action campaign, probably for two years before we issued the letter of demand in early to in early 2001. 193 00:24:29,790 --> 00:24:37,110 And the other misconception is that successfully litigating rights involves getting a successful judgement. 194 00:24:37,110 --> 00:24:40,750 Many of the cases in South Africa, not just in relation to health. 195 00:24:40,750 --> 00:24:47,190 That victory is often in the settlements, forcing settlements through through rights litigation. 196 00:24:47,190 --> 00:24:51,180 And then there are just a series of issues that will come to in the discussion. 197 00:24:51,180 --> 00:24:59,760 What I would call the art of litigating rights, the role of client versus vis-a-vis the lawyer. 198 00:24:59,760 --> 00:25:08,430 How you balance individual cases. Individual the needs of the individual clients against the public interest, 199 00:25:08,430 --> 00:25:13,920 particularly when the settlement is offered to the individual knowing when to settle. 200 00:25:13,920 --> 00:25:22,650 Flexibility in recognising how the legal terrain will change while you're in the process of of of litigation. 201 00:25:22,650 --> 00:25:28,590 How you use and present evidence in litigation around rights. 202 00:25:28,590 --> 00:25:37,530 How you present voices in order to build empathy, both inside the court and outside of the court. 203 00:25:37,530 --> 00:25:49,650 So let me finish by saying that I think that we can tell the story of litigating health rights in South Africa as a success story with qualifications. 204 00:25:49,650 --> 00:25:55,760 We have created, I believe, social justice in relation to HIV. 205 00:25:55,760 --> 00:26:02,000 If social justice is defined as a equality of access, 206 00:26:02,000 --> 00:26:14,510 but HIV has become a sliver in relation to the continued broader injustice in relation to the right to health as a whole. 207 00:26:14,510 --> 00:26:24,890 And in the last 10 years, we have been trying to use rights and the Constitution to deal with those other injustices. 208 00:26:24,890 --> 00:26:29,840 And we've had a much more difficult job of it. 209 00:26:29,840 --> 00:26:36,740 And if I hadn't run out of time, I would have told you why I think we have having a difficult job. 210 00:26:36,740 --> 00:26:50,390 The new space that we are moving into in terms of politics, economics, shrinking democratic civic space, the primacy of budget issues in responses. 211 00:26:50,390 --> 00:27:02,210 I don't have time to go into that, but I do think it presents a whole new set of challenges which all of us need to be thinking very seriously about. 212 00:27:02,210 --> 00:27:10,280 If we are to retain credibility for human rights and for litigation as a means 213 00:27:10,280 --> 00:27:16,130 of unleashing the power that exists within human rights and health rights. 214 00:27:16,130 --> 00:27:19,280 In this particular instance, it was fascinating. 215 00:27:19,280 --> 00:27:28,130 I think when you started, you described your background and that you were here studying English literature, and that's what taught you to read. 216 00:27:28,130 --> 00:27:31,340 I studied French and Italian literature here. 217 00:27:31,340 --> 00:27:36,440 And one of the reasons I think a couple of things that are formative for the way in which I use the law now. 218 00:27:36,440 --> 00:27:42,110 One was my literature degree. Another was that I then went off and directed theatre, 219 00:27:42,110 --> 00:27:48,770 and that was the route where and it was political and it was intended to transform the world transport. 220 00:27:48,770 --> 00:27:53,060 And I think art can. Mine was not doing it in the way I wanted it to. 221 00:27:53,060 --> 00:27:56,810 So I left and in existential crisis, wrote to a couple of charities. 222 00:27:56,810 --> 00:28:01,100 And can I be useful not expecting anything to come of it in the place that I ended up with? 223 00:28:01,100 --> 00:28:08,570 Reprieve and reprieve converted me to the law rather than I converted to law. 224 00:28:08,570 --> 00:28:13,790 I had much like, you've been sort of sceptical of the law and I remain. 225 00:28:13,790 --> 00:28:19,890 I think I was right to be. I was I was angry with it as a small child. 226 00:28:19,890 --> 00:28:23,900 I just think it's also appropriate and I've softened with age. 227 00:28:23,900 --> 00:28:33,140 But as a tool, it is made to support the structures that exist in the structures that exist as structures of power. 228 00:28:33,140 --> 00:28:39,200 And I was somebody who cared, and I still care deeply about parts what attracted me to reprieve. 229 00:28:39,200 --> 00:28:48,890 And so the law was something that was, you know, suggested as an obvious cause for me, and I rejected it for years and years and years. 230 00:28:48,890 --> 00:28:57,620 And then I got a reprieve and I was sitting doing some piece of research when we got this call in about a death penalty case, 231 00:28:57,620 --> 00:29:02,600 a reprieve mentioned works on death penalty and then abuses in counterterrorism issues. 232 00:29:02,600 --> 00:29:06,350 Two things that I cared about you know somebody who cares about power, 233 00:29:06,350 --> 00:29:15,140 those areas where state uses the greatest force it can to end the life of one of its citizens or someone else, 234 00:29:15,140 --> 00:29:28,220 or abuses its power in the context, really, for us of the so-called war on terror post-9 11, that abuse of force and power mattered to me a lot. 235 00:29:28,220 --> 00:29:37,610 So I arrived at Reprieve was doing some research on the day that there was an execution scheduled in Arizona, 236 00:29:37,610 --> 00:29:43,730 and we got a call in via the at the time by the founder of Reprieve. 237 00:29:43,730 --> 00:29:52,940 At the time, the legal director, who I think probably played a similar role for me as as maybe you, your Marxist guerrilla lawyer, played for you. 238 00:29:52,940 --> 00:29:55,730 And he got a call from an old Capitol. 239 00:29:55,730 --> 00:30:01,430 Another lawyer from the Deep South who had been doing this death penalty case set up my guy scheduled for execution tonight. 240 00:30:01,430 --> 00:30:07,610 We've just found out that the drugs they're going to use to kill him have come from somewhere in England. 241 00:30:07,610 --> 00:30:13,310 Can you figure out anything about these drugs that we can use? 242 00:30:13,310 --> 00:30:19,340 And Clive is the founder called The Office and said, Look, you know, it's probably hopeless. 243 00:30:19,340 --> 00:30:27,290 It's a half hour research task. Can someone look into this? And I have no idea what I was doing, and I said, Absolutely, I'll look into that. 244 00:30:27,290 --> 00:30:31,130 And it was really fascinating to start digging in. 245 00:30:31,130 --> 00:30:37,070 I think I'm going to talk about the different things that I think make you successful and be successful. 246 00:30:37,070 --> 00:30:47,360 I mean, you know, your case, you can have an impact in the world in the way that you wish to as somebody who's part of a legal organisation. 247 00:30:47,360 --> 00:30:54,260 One of the key components is investigation, and I think maybe lawyers aren't. 248 00:30:54,260 --> 00:31:02,260 Some lawyers aren't. Ought to investigate as much as they should be, because facts change everything, 249 00:31:02,260 --> 00:31:11,800 and there's a real humility to trying to unearth the facts and digging in, and you might spend hours and hours and hours and hours and hours and, 250 00:31:11,800 --> 00:31:17,980 you know, not get anywhere, but that those hours are going to be the hours that certainly in my experience, 251 00:31:17,980 --> 00:31:24,400 those are going to be the hours that change the way you can run the case. So in this instance, I dug around. 252 00:31:24,400 --> 00:31:28,450 I was trying to understand the pharmaceutical industry for the first time and 253 00:31:28,450 --> 00:31:34,870 figured out a few things about the drugs that probably they weren't good. Maybe they were veterinary, maybe they were unapproved. 254 00:31:34,870 --> 00:31:40,780 Maybe they were off the back of a truck somewhere. I didn't really know, but I knew enough to say, OK, I think this is bad stuff. 255 00:31:40,780 --> 00:31:47,380 Send it across to the lawyer. The lawyer gets me to turn it into an affidavit that gets filed, 256 00:31:47,380 --> 00:31:58,540 and he get to stay on the basis that to the constitutional provision is you have a right to be free from a cruel and unusual execution. 257 00:31:58,540 --> 00:32:02,830 So for us, cruel, inhuman or degrading treatment or punishment for them, cruel and unusual. 258 00:32:02,830 --> 00:32:07,960 And it gets us day and I cycle home thinking, Oh, this is great. 259 00:32:07,960 --> 00:32:12,460 This is. And I get back, go to bed, wake up the next morning to the World Service. 260 00:32:12,460 --> 00:32:15,520 And they say that Jeffrey Landrigan, after a brief stay of execution, 261 00:32:15,520 --> 00:32:23,040 had been executed earlier that morning so that there were few key things there, one that he was executed. 262 00:32:23,040 --> 00:32:28,270 I have lots of thoughts about the way in which the US, particularly the Supreme Court, 263 00:32:28,270 --> 00:32:36,280 interprets that provision of the Eighth Amendment freedom from cruel and unusual treatment or punishment. 264 00:32:36,280 --> 00:32:43,300 I think it's actually about the spectators ask the public and the rest of the citizens and less about the prisoner. 265 00:32:43,300 --> 00:32:49,420 And I can come back to that if it's if it's of interest later. And that was one thing. 266 00:32:49,420 --> 00:32:53,800 The other thing I was all about. I mean, at a relatively superficial level. 267 00:32:53,800 --> 00:33:03,160 But the pharmaceutical supply chain, which is in this instance, you had drugs that come from England and had been sent over to a US death row. 268 00:33:03,160 --> 00:33:08,560 When you look into it, you discover that there are lots of different links in that chain. 269 00:33:08,560 --> 00:33:16,870 That's the first point, second point. Those companies don't want to be associated with executions, they may not care about the death penalty. 270 00:33:16,870 --> 00:33:24,490 They may not care about your client, but they don't want to be associated with something that is directly opposed to their PR statements. 271 00:33:24,490 --> 00:33:31,700 So those were interesting things. I set those aside. We have discovered that these drugs have been sold from England. 272 00:33:31,700 --> 00:33:36,670 This guy was executed over the next really just days. 273 00:33:36,670 --> 00:33:43,750 We tracked the other executions that are taking place using these British drugs and where they had come from. 274 00:33:43,750 --> 00:33:49,600 And we, I think probably the next day, the day after launching his execution, wrote to Vince Cable, 275 00:33:49,600 --> 00:33:57,340 who was then the business secretary, and it was me writing to the business secretary pretending to be Clive. 276 00:33:57,340 --> 00:34:02,510 And so I had to make it really pompous. And he would appreciate my saying that. 277 00:34:02,510 --> 00:34:10,000 There was lots of Shakespeare in it. It was it was a very non-legal style letter, but it was pre-action correspondence. 278 00:34:10,000 --> 00:34:18,340 So essentially what we said was you need to put an export control on this particular product and you need to do so within five minutes. 279 00:34:18,340 --> 00:34:21,520 Something really unreasonable because we can be very unreasonable. 280 00:34:21,520 --> 00:34:26,380 And again, it sort of sometimes you throw out the protocols anyway, you need to do this. 281 00:34:26,380 --> 00:34:33,550 And if not, we're going to we're going to take you to court. And, you know, quite reasonably, Vince Cable's at all of it. 282 00:34:33,550 --> 00:34:41,170 And he did take more than it was probably 48 hours we gave him. So we went to court and I thought for a while, I mean, 283 00:34:41,170 --> 00:34:46,450 we won that case and we won that case because in the middle of it was an expedited 284 00:34:46,450 --> 00:34:51,820 hearing and a few days in the government's lawyers came and we spent it on. 285 00:34:51,820 --> 00:34:55,600 Essentially, they changed their position. They said they would impose an export control. 286 00:34:55,600 --> 00:35:02,140 This all happened within a matter of weeks of us discovering of Jeffrey Landrigan execution, in fact. 287 00:35:02,140 --> 00:35:09,700 And that for me to see it, we didn't win the case in the court, really, because we didn't have to get through to any judge deciding it. 288 00:35:09,700 --> 00:35:14,200 We want it because we were we had our facts right. 289 00:35:14,200 --> 00:35:22,000 We had investigated, knew that there wasn't a legitimate supply of sodium thiopental, the drug at issue going from the UK to the US at the time. 290 00:35:22,000 --> 00:35:25,720 Therefore, the only drugs being sold to the US at that point, 291 00:35:25,720 --> 00:35:31,120 the only sodium thiopental being exported to the US at that point was for the purposes of executions. 292 00:35:31,120 --> 00:35:37,330 Our legal case was based on the principle that the British government opposes the death penalty. 293 00:35:37,330 --> 00:35:43,840 Our law does not allow for it. And therefore in some way assisting or facilitating the death penalty in another jurisdiction, 294 00:35:43,840 --> 00:35:51,460 even though it's through what you have failed to do rather than what you are actively doing, it's unlawful that that was our legal argument. 295 00:35:51,460 --> 00:36:00,690 We. Investigated, got the facts, but we also met a lot of noise about the case in the court of public opinion. 296 00:36:00,690 --> 00:36:02,790 One of the really important court for that, 297 00:36:02,790 --> 00:36:11,010 you'll have to work and I think if you're going to be successful in terms of litigating rights and impact litigation. 298 00:36:11,010 --> 00:36:17,310 And we were also pretty active politically. And that gets you to so they change their mind. 299 00:36:17,310 --> 00:36:25,250 They put an export control in place on sodium thiopental. We then get that same export control in place across Europe. 300 00:36:25,250 --> 00:36:36,960 And I then work, I'll talk briefly about the the work that we did then because I think it gives you an example of this theory that we have. 301 00:36:36,960 --> 00:36:48,780 You can work in the court of law, but if you're dealing with a system that is structured to support those with power and your job is to try to place 302 00:36:48,780 --> 00:36:54,150 yourself between the people with the power and the people without or to provide additional power to those powerless, 303 00:36:54,150 --> 00:36:58,440 you know, structurally have been deprived of that power being abused. 304 00:36:58,440 --> 00:37:05,280 You are going to have to find other court fora to occupy at the same time. 305 00:37:05,280 --> 00:37:10,590 Or you can have to be really creative with the law, which is also something that I think you'll you'll see in these organisations. 306 00:37:10,590 --> 00:37:17,070 So for me, over the years, I've stripped it down to I think there are sort of four main courts, but there may be more and you should throw them out. 307 00:37:17,070 --> 00:37:20,190 In fact, there's probably five that I could name the main ones. 308 00:37:20,190 --> 00:37:26,520 The traditional courts, which are untraditional, are court of law, fine court of public opinion, the press, the media. 309 00:37:26,520 --> 00:37:34,980 You know, you can't always do it, but when you can do it, it will boost a certain line of argumentation if you're strategic about it. 310 00:37:34,980 --> 00:37:40,770 You have a political courtroom. You know that the halls of power, then you have a corporate courtroom, which is where I'll go next. 311 00:37:40,770 --> 00:37:45,370 I think the fifth one would be a sort of artistic one, perhaps that maybe we are not doing. 312 00:37:45,370 --> 00:37:49,790 And you had Wolfgang here recently. I know he thinks about this a lot. 313 00:37:49,790 --> 00:37:53,250 I think maybe as lawyers and legal organisations and third sector organisations, 314 00:37:53,250 --> 00:37:57,510 we could be exploiting that courtroom a little in a more sophisticated way. 315 00:37:57,510 --> 00:38:09,240 But I threw that first out, experienced the way in which the other court fora that we were using won us the case in the court of Law. 316 00:38:09,240 --> 00:38:13,500 And it wasn't actually, I don't think I I don't want to say we wouldn't have won, 317 00:38:13,500 --> 00:38:20,340 but I think it's possible that the law wasn't on us at that point, but we got what we needed at that point. 318 00:38:20,340 --> 00:38:25,020 And then, of course, all these states couldn't get hold of that one drug. They moved to other drugs. 319 00:38:25,020 --> 00:38:34,570 And I don't I don't want to take too long over this. But. It's a I think it's worth talking a little bit about the work that we then did on 320 00:38:34,570 --> 00:38:40,850 the issue of the drugs used in executions because this was it could look very bleak. 321 00:38:40,850 --> 00:38:49,090 You know, it's this isn't the key. You're talking about the death penalty. One might think that you would be trying to litigate issues of innocence. 322 00:38:49,090 --> 00:38:53,200 And if you have an innocent client, absolutely you are doing that. 323 00:38:53,200 --> 00:39:01,030 But as an organisation that's trying to make a change in an area where a lot of a lot of progress has been made, 324 00:39:01,030 --> 00:39:09,070 but it's also extremely difficult to win those sorts of cases, I think sometimes coming at issues from this oblique angle. 325 00:39:09,070 --> 00:39:18,820 According to the Supreme Court justice, who and may he rest in peace, Scalia guerrilla guerrilla warfare, guerrilla attack on the death penalty. 326 00:39:18,820 --> 00:39:24,670 Sometimes you do need to be looking at things from these different angles, so oddly. 327 00:39:24,670 --> 00:39:30,820 I started working with pharmaceutical companies to try to change the way in which the US carried out executions. 328 00:39:30,820 --> 00:39:38,110 And the theory of this was the US uses the lethal injection because at present, it's a palatable. 329 00:39:38,110 --> 00:39:44,560 It looks clinical. It's seems palatable. It is the modern face of the death penalty. 330 00:39:44,560 --> 00:39:46,300 And of course, it's anything but that. 331 00:39:46,300 --> 00:39:54,950 So if you move states away from the lethal injection, you see approval ratings for the death penalty per state just dropped dramatically, 332 00:39:54,950 --> 00:39:59,800 but you also see fewer executions because it's the practical mechanics that sound in the machine. 333 00:39:59,800 --> 00:40:06,460 And what I discovered on that first evening of researching this was these companies don't want anything to do with the death penalty. 334 00:40:06,460 --> 00:40:09,820 These medicines weren't made for this purpose. 335 00:40:09,820 --> 00:40:17,920 And they go through lots of different jurisdictions before they end up in the US, in these on these death rows. 336 00:40:17,920 --> 00:40:22,810 So what we did at that point was looked at, worked with the first company. 337 00:40:22,810 --> 00:40:26,650 I had this conviction that these companies could control where their medicines go. 338 00:40:26,650 --> 00:40:32,980 They can in order to convince the first company, I had to design the distribution system for them. 339 00:40:32,980 --> 00:40:38,050 That required me as somebody who also doesn't is not a not a real lawyer. 340 00:40:38,050 --> 00:40:42,770 You are really I'm not a real law to design these distribution systems. 341 00:40:42,770 --> 00:40:48,280 It wasn't just contractual arrangement, it was understanding the way in which that industry worked in order to be able to work out, 342 00:40:48,280 --> 00:40:54,700 what do you need to do to ensure that a company can protect its medicines and ensure they go to the right place and not the wrong place? 343 00:40:54,700 --> 00:41:02,680 It was highly technical, figured it out ended up. One other snapshot along the way I did lots of press in Denmark. 344 00:41:02,680 --> 00:41:10,930 The company was Danish, including on one occasion bringing a lizard to a press conference, which I put on the table, a live lizard. 345 00:41:10,930 --> 00:41:16,300 And I people, everybody you know, will will be useful at some point. 346 00:41:16,300 --> 00:41:24,460 This was I had a live visit there because my theatre friends in Denmark, I had a prop person who who had got me props for lots of shows I've done. 347 00:41:24,460 --> 00:41:32,590 She went and got me a love letter placed on the table. This got the attention of various people, but the real key to that case was not the lizard. 348 00:41:32,590 --> 00:41:36,580 But although it did get under the skin of one of the guys at Lundbeck, 349 00:41:36,580 --> 00:41:42,190 but designing a system that's going to work and I ended up in a meeting with the CEO of this company, 350 00:41:42,190 --> 00:41:47,770 who when I described the system, his PR guy, he was the one who got really upset about the lizard said, 351 00:41:47,770 --> 00:41:50,650 Yeah, but you know, we're stuck between a rock and a hard place. 352 00:41:50,650 --> 00:41:56,890 We have all these patients, just a small number of prisoners and can't deprive all those patients, which sounds very rational. 353 00:41:56,890 --> 00:42:02,140 But it was this false dichotomy that a lot of companies had used over the years. 354 00:42:02,140 --> 00:42:06,100 And the CEO put his hand across and said, Well, why? 355 00:42:06,100 --> 00:42:12,220 Why can't we do what she's saying? Why can't we implement this system? Because I had designed it and it was clear that it would work. 356 00:42:12,220 --> 00:42:17,620 And if you actually were invested, you know, two things had happened. One, it had Matt, I'd made it matter. 357 00:42:17,620 --> 00:42:19,090 And if you can. 358 00:42:19,090 --> 00:42:26,110 People often ask about working with corporations, if you can, in the Venn diagram of your interests and as they do hold a lot of power. 359 00:42:26,110 --> 00:42:28,330 And if you are trying to help people without power, 360 00:42:28,330 --> 00:42:36,670 you want to bring as many powerful people to the table as you can in order to advocate for the people that you're trying to assist. 361 00:42:36,670 --> 00:42:39,820 Sometimes they don't care. Sometimes you can bring them to care. 362 00:42:39,820 --> 00:42:46,840 And as a crossover in the Venn diagram of their interest in yours, that's where you've got something some real potential. 363 00:42:46,840 --> 00:42:51,490 So we managed to convince this company to put the controls in place. 364 00:42:51,490 --> 00:42:58,840 And over the last few years, every other company has done so as well. The one of the things I mentioned, 365 00:42:58,840 --> 00:43:10,870 the different court for I think as lawyers and particularly if you work in a a legal organisation and you're not directly representing individuals, 366 00:43:10,870 --> 00:43:16,730 you get to play in lots of different jurisdictions as well as different court for us. 367 00:43:16,730 --> 00:43:23,500 So when one of the companies I was working with didn't immediately want to do what 368 00:43:23,500 --> 00:43:27,910 I thought was the right thing to do for that business and also our interests, 369 00:43:27,910 --> 00:43:32,030 they. And they were really pushing against us having a bit of a fight, 370 00:43:32,030 --> 00:43:39,920 and then they inverted the tax inversion and they moved over to the Netherlands and suddenly they were in this other jurisdiction where 371 00:43:39,920 --> 00:43:46,940 we could file an obesity complaint and do various other things because they had expose themselves to a whole other legal system. 372 00:43:46,940 --> 00:43:55,880 So a lot of what Reprieve does is tries to leverage these different international actors using the law. 373 00:43:55,880 --> 00:44:01,040 And the last thing I will talk about because there wasn't a lot of time and I want 374 00:44:01,040 --> 00:44:06,720 to make sure there is time for the conversations is just on that same theme. 375 00:44:06,720 --> 00:44:10,890 You I think it's incredibly it's incredibly creative. 376 00:44:10,890 --> 00:44:15,630 It's a really fun, creative endeavour to use the law in this way where you're looking at the world 377 00:44:15,630 --> 00:44:20,100 and you're looking at the different legal systems and basically the principles, human rights principles, 378 00:44:20,100 --> 00:44:27,960 if that's what you're if those are the rights that you're working from on and figuring out where you might have some leverage 379 00:44:27,960 --> 00:44:36,480 looking at the connexions between different governments and different supply chains or whatever other other links you can find, 380 00:44:36,480 --> 00:44:40,980 but equally, don't just look at the traditional legal frameworks. 381 00:44:40,980 --> 00:44:46,410 It's not, you know, the Human Rights Act in Britain. British courts and indeed the government. 382 00:44:46,410 --> 00:44:52,950 If that's if you're if you're fighting the state, they know those arguments. They are really well armoured against them. 383 00:44:52,950 --> 00:44:59,370 And the national security argument says that really hard challenges to bring because the law is against us. 384 00:44:59,370 --> 00:45:02,820 But if as somebody who works in an organisation, 385 00:45:02,820 --> 00:45:11,580 you can be thinking about the contract law and that can stay an execution because some company actually intervenes and says, 386 00:45:11,580 --> 00:45:17,790 my contract's been broken here and then you end up not having somebody executed in Nevada, which happened last year. 387 00:45:17,790 --> 00:45:24,240 That's amazing. Or we used the Data Protection Act, which sounds like a really dry piece of legislation, 388 00:45:24,240 --> 00:45:30,300 but we've managed to get exculpatory evidence about one of our guys on death row who was on death row. 389 00:45:30,300 --> 00:45:38,130 Actually, he was put there with the assistance of the Brits and it was in Kenya and through the litigation, and it was both. 390 00:45:38,130 --> 00:45:44,500 There was a judicial review which we didn't get to the end of, but we did get disclosure, which was very, very helpful. 391 00:45:44,500 --> 00:45:48,390 But I think the law is a tool for forcing governments to be a bit more transparent. 392 00:45:48,390 --> 00:45:53,640 It's incredibly helpful and then you have to be creative with what you get on this case in two 393 00:45:53,640 --> 00:46:00,690 instances of British complicity in the death penalty in two jurisdictions Thailand and Kenya. 394 00:46:00,690 --> 00:46:06,540 We were able to get information that contributed to us being able to advocate for those individuals. 395 00:46:06,540 --> 00:46:12,960 And in one case, the death sentence was overturned on appeal, pending an appeal. 396 00:46:12,960 --> 00:46:20,220 So I think that's my message to lawyers in general is that, yes, the law is very useful. 397 00:46:20,220 --> 00:46:25,260 And if you want to do individual cases, we need lawyers who are working on individual cases, 398 00:46:25,260 --> 00:46:28,500 and I have so much respect for the people who are doing that. 399 00:46:28,500 --> 00:46:41,180 But if your interest is in working in a way within an organisation and trying to effect change that structural systemic you may want to consider. 400 00:46:41,180 --> 00:46:47,030 Perhaps pulling away from it from quite a narrow view of what the law is and trying to play in these different, 401 00:46:47,030 --> 00:46:53,250 different courtrooms that have opened up to us. And it's really fun. 402 00:46:53,250 --> 00:46:59,250 Mark spoke more about clients, but via didn't speak that much about clients, 403 00:46:59,250 --> 00:47:07,320 and I wondered whether one thinks about who makes decisions about legal strategy in circumstances where you where you have a client, 404 00:47:07,320 --> 00:47:18,150 whether an individual or an organisation or social movements, and how you manage that decision around strategy and the relationship with clients. 405 00:47:18,150 --> 00:47:25,740 And also how one manages a situation where there may be a conflict of interest or between an outcome or strategy an 406 00:47:25,740 --> 00:47:33,110 individual client or organisation wants once and the one that you think is appropriate for the goal of the litigation. 407 00:47:33,110 --> 00:47:36,560 Yeah. Do you understand? 408 00:47:36,560 --> 00:47:46,700 Sure, well, I'll just I'll start with the first piece just on the on the clip, but that's right, with in the particular project that I talked about, 409 00:47:46,700 --> 00:47:55,850 I didn't reference the individuals, although as a casework led organisation, of course, at the heart of it, the first case was Jeffrey Landrigan case. 410 00:47:55,850 --> 00:48:05,270 The second case. The judicial review is brought on behalf of Ed Sikorski, so there are people at the heart of it with the lethal injection work. 411 00:48:05,270 --> 00:48:15,590 It's a strategy that is quite complementary to the work that the individual lawyers are doing to try to save the life in the criminal proceedings. 412 00:48:15,590 --> 00:48:22,010 Exactly. So I think it's unusual for there to be a conflict in that circumstance because 413 00:48:22,010 --> 00:48:28,580 the objectives of the same and we occupy sometimes slightly different terrains. 414 00:48:28,580 --> 00:48:34,870 The only area where it does get complicated and I think it's very interesting is around strategies on methods. 415 00:48:34,870 --> 00:48:40,130 So if you think that the end of the death penalty will come about because states will move away from 416 00:48:40,130 --> 00:48:48,430 lethal injection and you are in a position where your client gets to pick which method of execution they. 417 00:48:48,430 --> 00:48:52,270 Not even gets to is obliged to pick a method of execution that can be conflict. 418 00:48:52,270 --> 00:49:00,080 And then. Of course, it has to come from the individual, but if you are working as an organisation, 419 00:49:00,080 --> 00:49:05,450 we have a set of cases right now in Syria where I work with a number of individuals. 420 00:49:05,450 --> 00:49:13,640 You will litigate on behalf of the person, whether interest in your interests align and what you may not do is throw a lot of 421 00:49:13,640 --> 00:49:19,790 your resource behind a case if you don't think it's going to have an impact for the, 422 00:49:19,790 --> 00:49:22,100 you know, I think if you don't think it's strategic. 423 00:49:22,100 --> 00:49:29,840 So I think there are usually ways to navigate a potential conflict, and I think it is about being really honest in the conversation, 424 00:49:29,840 --> 00:49:34,400 in the way in which you pick cases incredibly strategic because you pick. 425 00:49:34,400 --> 00:49:43,430 But I also think sometimes that conflict can be overstated, and often it's possible to find a way if you're being very creative, 426 00:49:43,430 --> 00:49:49,040 to ensure that that anything you do is serving both the broader interests and the individuals. 427 00:49:49,040 --> 00:49:54,620 But perhaps, you know, it's sounds quite general, I think. No, I agree. 428 00:49:54,620 --> 00:50:00,920 I think it's hard to make hard and fast rules. It will differ from case to case. 429 00:50:00,920 --> 00:50:05,930 And so really, what you need to do is to try to work out what's a set of guiding principles and then 430 00:50:05,930 --> 00:50:11,480 check off those guiding principles as to what to do in in a particular situation. 431 00:50:11,480 --> 00:50:20,060 And I think it will differ as to whether a client is an individual or whether it's a it's a powerful social movement. 432 00:50:20,060 --> 00:50:23,900 You know, I've faced this on quite a number of times and, you know, 433 00:50:23,900 --> 00:50:35,060 taking the individuals and there's always lessons to this is ultimately if a client's interests, individual interests have to be paramount. 434 00:50:35,060 --> 00:50:43,130 So I mentioned the South African Airways case, you know, before it got to the Constitutional Court, 435 00:50:43,130 --> 00:50:48,080 we had a case actually started with a case that was run by the AIDS law project. 436 00:50:48,080 --> 00:50:52,550 A person called A. And we built a beautiful case. 437 00:50:52,550 --> 00:50:57,380 We got a lot of publicity. We began to shape public opinion. We had all the right facts. 438 00:50:57,380 --> 00:51:07,760 And then South African Airways came along and offered 100000 rand. And for this person, 100000 rand was was manna from heaven. 439 00:51:07,760 --> 00:51:15,830 We had no choice ultimately but to go with the client's wishes to settle that case and for a person living with HIV as well. 440 00:51:15,830 --> 00:51:23,300 There's also the fear of the spotlight, the issues of confidentiality, a whole bunch of stresses. 441 00:51:23,300 --> 00:51:31,100 But but if you're in it for the long haul, you know what happened with the South African Airways case was, well, 442 00:51:31,100 --> 00:51:39,110 we were later able to bring in all of that evidence that we got in another case of exactly the same facts. 443 00:51:39,110 --> 00:51:48,530 So we we won that case eventually. And one of the things lessons we've drawn from that subsequently and we 444 00:51:48,530 --> 00:51:54,740 sometimes forget to apply it is try to have if you're working for an individual, 445 00:51:54,740 --> 00:51:59,330 try to have a organisational client as well, 446 00:51:59,330 --> 00:52:04,040 so that if the state tries to settle or whoever tries to settle with the individual, 447 00:52:04,040 --> 00:52:12,800 the case can be carried forward by an NGO or by it, by by by a social movement. 448 00:52:12,800 --> 00:52:16,970 Then the other thing that I would say just in response to that, though, is is that it is a tricky relationship. 449 00:52:16,970 --> 00:52:20,270 And I joked about know the treatment action campaign. 450 00:52:20,270 --> 00:52:26,180 In this case, I would say I was the treatment action campaign and the legal resources centre was was the lawyers. 451 00:52:26,180 --> 00:52:35,660 I think, first of all, that lawyers have a responsibility to empower the client organisation in the law. 452 00:52:35,660 --> 00:52:42,620 So to try to narrow that information asymmetry so that that they can actually be a real 453 00:52:42,620 --> 00:52:50,190 discussion about at critical moments of of of legal strategy and within the taxi, 454 00:52:50,190 --> 00:52:56,030 we always not just made sure that the team that worked with the lawyers understood the law, 455 00:52:56,030 --> 00:53:04,370 but we also made sure that the members of the treatment action campaign understood the law and people in branches in the most poorest 456 00:53:04,370 --> 00:53:13,070 parts of South Africa could talk about the medicines and the virology of the medicines and how they were patented and secondary patents. 457 00:53:13,070 --> 00:53:17,090 And and and could could often say to us, No. 458 00:53:17,090 --> 00:53:20,930 People don't go in that particular direction, 459 00:53:20,930 --> 00:53:28,370 but it's a balance because what I find with people who are trained as lawyers is there's often a conservatism, 460 00:53:28,370 --> 00:53:31,670 even amongst the most progressive of trained lawyers. 461 00:53:31,670 --> 00:53:38,390 There's a point at which a lawyer will tell you, there's a wall there and you can't go past that wall. 462 00:53:38,390 --> 00:53:44,600 And we will often say, No, you can go past that wall. Actually, believe us, you can go past that wall. 463 00:53:44,600 --> 00:53:51,770 But we too have to be accept that you bring lawyers on board for a reason, which is that they have knowledge, 464 00:53:51,770 --> 00:53:58,400 they have expertise, they know what they're talking about for the most part. 465 00:53:58,400 --> 00:54:04,600 So it's a it's a dialogue. It's a continual dialogue to work out what is the. 466 00:54:04,600 --> 00:54:11,070 The best way forward where both have to be prepared at different points to defer to the other. 467 00:54:11,070 --> 00:54:20,760 Yeah, I would add one more person into the dialogue, I agree that it absolutely something we've been doing increasingly is working with a 468 00:54:20,760 --> 00:54:27,580 clinical psychologist and really she we've brought her into some of the cases where. 469 00:54:27,580 --> 00:54:35,880 Started where there were some victims who wanted to participate in the impact of civil actions and then the criminal actions. 470 00:54:35,880 --> 00:54:42,270 But they had been victims in the case, so we needed to ensure that that interests were feel ethically to go, 471 00:54:42,270 --> 00:54:48,690 that their interests were being sort of respected and that they weren't being dragged along. 472 00:54:48,690 --> 00:54:54,060 They wanted to work with us, but we are not clinical psychologist ourselves. 473 00:54:54,060 --> 00:55:01,530 And this was a very vulnerable person. And what I've seen in working with this particular individual is absolutely 474 00:55:01,530 --> 00:55:08,460 brilliant and really thinks about justice and what justice means to individuals. 475 00:55:08,460 --> 00:55:13,590 Obviously, we have to think about it too. You talked about rights, and that was really fascinating. 476 00:55:13,590 --> 00:55:18,480 There is a different going through a process and going through a process and being treated with 477 00:55:18,480 --> 00:55:28,800 respect and being given the information is some such a big part of how people feel about the outcome. 478 00:55:28,800 --> 00:55:37,200 It's not necessarily that there was a conflict between one strategic line of thinking and another. 479 00:55:37,200 --> 00:55:42,570 Or yeah, sometimes it's simple as a damage damages claim and you know, somebody settles or they don't. 480 00:55:42,570 --> 00:55:49,710 But but even just small decisions where you lose a client, it can be because they feel like they're being treated badly in the process. 481 00:55:49,710 --> 00:55:57,690 And lawyers are not massively creative, too often not the best equipped to work humanly with the clients. 482 00:55:57,690 --> 00:56:02,250 And we do work with some of the most vulnerable people who many of whom have been tortured, 483 00:56:02,250 --> 00:56:07,350 many of whom remain in conditions which could constitute torture, ongoing torture. 484 00:56:07,350 --> 00:56:12,330 So there's a there's another person in there in the dialogue, I think, 485 00:56:12,330 --> 00:56:22,650 or another potential entity who can help us navigate some of these tricky questions of what justice feels like for a client versus broader issues. 486 00:56:22,650 --> 00:56:31,080 And I just I'm sorry to do this, but I wanted because I think it's an important point is that, you know, litigation around rights can build citizens. 487 00:56:31,080 --> 00:56:38,790 I don't use citizens in the narrow, nationalistic sense, and I've seen it on on numerous occasions, 488 00:56:38,790 --> 00:56:42,630 and that's so important for society and for social fabric. 489 00:56:42,630 --> 00:56:48,210 And not I often give this example because I like to call up her memory. 490 00:56:48,210 --> 00:56:50,880 You know, in the case. 491 00:56:50,880 --> 00:57:02,790 There was a woman called Sarah collateralLy who lived with HIV, and we she had a horrible story, terrible, tragic story because of stigma. 492 00:57:02,790 --> 00:57:12,750 She wouldn't go to. She had to go to a faraway hospital to get a nevirapine tablet because she didn't want to be seen close to where she lived. 493 00:57:12,750 --> 00:57:22,470 And then she went into labour prematurely and forgot her tablet and was taken to a local hospital. 494 00:57:22,470 --> 00:57:27,930 And so she knew everything about how this medicine reduce the risk of transmitting to the baby. 495 00:57:27,930 --> 00:57:33,120 But she couldn't tell the people at the hospital, and they weren't providing the medicines at that point. 496 00:57:33,120 --> 00:57:41,070 And that was the the story of Sarah and how her baby was born with HIV. 497 00:57:41,070 --> 00:57:49,350 But I went to meet Sarah and the first time I met Sarah, and this transition I'm about to describe took place in probably a year. 498 00:57:49,350 --> 00:57:56,070 I met her in a place called Charleville, and I went into her little house and asked to see Sarah. 499 00:57:56,070 --> 00:57:59,360 And there was Sarah sitting in a corner. 500 00:57:59,360 --> 00:58:10,070 Of the room on the floor eating out of a saucepan because the people she was living with wouldn't let her use the cutlery and and so on. 501 00:58:10,070 --> 00:58:21,220 Because of the stigma and fear of HIV sobbing uncontrollably, this completely broken person. 502 00:58:21,220 --> 00:58:31,510 And we built a relationship with Sarah through the litigation, through the campaign and within a year. 503 00:58:31,510 --> 00:58:36,430 I remember after the court case before the Constitutional Court. 504 00:58:36,430 --> 00:58:46,930 You know, seeing this person who one day stood outside of the Pretoria High Court with her baby in her HIV positive t shirt, 505 00:58:46,930 --> 00:58:57,460 talking to the media and saying who she was, what she was, why she was involved in this litigation and that's and that happens. 506 00:58:57,460 --> 00:59:02,830 And it happens in the situations that Maya's talking about happens in the situation that we described. 507 00:59:02,830 --> 00:59:08,500 And I think it's an enormous plus to litigating rights. 508 00:59:08,500 --> 00:59:15,610 And you could have lost her. And if you had lost her, if she she had decided she didn't want to pursue the case because it was too traumatic. 509 00:59:15,610 --> 00:59:19,900 People might then have said it was, you know, it was a strategic conflict. 510 00:59:19,900 --> 00:59:27,130 You know, sometimes these things that are just very human are at the heart of something that we create. 511 00:59:27,130 --> 00:59:34,180 We decide it is political or legal strategic conflict. 512 00:59:34,180 --> 00:59:38,350 Well, thank you both really very engaged responses to all those questions, 513 00:59:38,350 --> 00:59:51,616 the very interesting evening, would you join me in thanking to visit host countries and perhaps.