The litigating rights conversation is a series we have every term in which we explore issues that arise for litigators in seeking
to promote and protect human rights in a range of different places around the world and in a range of different fields of law.
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,
commenced sort of litigation work, I think, with the AIDS Law Project in Johannesburg in 1994,
just at the commencement of South Africa's new democratic order.
And he then became one of the founders of the AIDS Law Project,
which has played a significant role in seeking to protect the rights of people living with HIV aids.
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,
which protects economic and social rights in particularly in particular right of access to water, to food, to health care.
And so those are the things he's going to be talking to us about today.
Meyer is based here in the UK, and she is the director of the legal charity Reprieve UK.
Some there may be people here in the audience.
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.
She has been. She leads a team of lawyers seeking to protect people from grave human rights abuses and works,
particularly in the field of the death penalty, rendition and torture.
She is one of the reasons she's famous for her development of a strategy around attacking
the supply of drugs used for the implementation of the death penalty in the United States,
and she really was a very successful campaign for a number of years.
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,
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.
We're going to start off with each of them speaking for 15 to 20 minutes about their own careers,
which will give us all a deeper understanding of who they are and what they've done.
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.
So Mark, if I could ask you two to kick off? Thank you.
Good evening, everybody, and thank you very much, Kate and Maya for the introduction and what Kate didn't say.
I can describe myself as a litigator, but I'm not a lawyer.
I think I'd probably fall under what you describe here as legal practitioners.
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,
I say, Well, English literature teaches you how to read, and it also teaches you how to be a humanitarian.
But it took the tutelage of a lawyer who was in the underground in South Africa,
chap called Rob Petersen in an organisation called the Marxist Worker's Tendency of the ANC to teach me how to write
because I think from law that you get a logic and an ability to write with a precision and with with the clarity.
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.
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,
both from some of our colleagues on the left who question whether it is radical enough and efficacious enough in
bringing about deep change and obviously under attack from the right who question the very notion of of of of rights.
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,
but we'll get to the nitty gritty of of strategy and tactics of of litigators,
but is just about the power of rights as instruments for meaningful and and quite profound.
Change, and certainly I never started out my legal life as a believer in law.
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.
So. The subject of this evening's discussion is is litigating rights,
I'm going to talk about litigating health rights in South Africa under South Africa's 1996 final
constitution and the Constitution and the section of the Constitution in our Bill of Rights Chapter two,
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
turn a set of promises on a piece of paper into something tangible in people's people's people's lives.
But before I get to the actual litigation,
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.
If you like to test the meaning of the Constitution for for poor people in South Africa and vote for disadvantaged people.
So the first thing to say is that under apartheid, health was a marker of racial inequality.
Spending on health differed according to race differed substantially according to race.
And in apartheid categories, the most was spent on white people.
The least was spent on black people. A little bit more was spent on so-called coloured people.
A little bit more was. So there was a hierarchy of of of of expenditure on health.
And obviously, if you have a hierarchy of of expenditure on health,
you have a hierarchy of health outcomes because there isn't the health system to either prevent or to treat illness.
So by the time we got to 1994 and freedom in South Africa,
there were stark inequalities in life expectancy, in infant mortality and in epidemiology and epidemics.
Black people, poor people, experienced epidemics of tuberculosis,
which had existed for a century of sexually transmitted diseases because of
migrant labour and the hospital system on the gold mines around Johannesburg.
Many other causes of of of illness and then latterly from the nineteen middle of the 1980s,
an epidemic of the human immunodeficiency virus or what we we we call HIV.
And. That's the second point I want to make by way of setting a context for litigation, which is that.
Nobody had planned for the HIV epidemic. Not the liberation movements, not the constitution makers are.
And yet from about the mitt from about 1995, the HIV epidemic began to run very,
very rapidly down the fault lines that had been created by apartheid inequalities again migrant labour system,
gender inequality, gender violence, the hospital system, etc. so that as we were contemplating freedom in 1994,
unbeknown to the vast majority of people, we by then had an explosive HIV epidemic.
Very few people were aware of it at that point, because HIV has a long, asymptomatic period between infection and the development of immune.
Symptoms of immune immune deficiency. But by 1994, we were looking we were projecting an epidemic of five million infections.
In fact, today in South Africa, if you want the shocking statistics,
there are seven and a half million people who live with HIV, and I'll come back to that.
But I think what the this, you know,
the health inequality and then the HIV epidemic meant was that unexpectedly you had this convergence
of issues at exactly the same time as the Constitution making process and the immediate.
Bringing into effects of the Constitution and the convergence of these issues.
Issues which were fundamental rights in the constitution, but also fundamental to dignity and fundamental to equality.
In fact, I personally had never planned to be an activist in the HIV epidemic.
You know, I was involved in the liberation struggle from the time I was at Oxford.
But by the early 1990s, when I was introduced to HIV, I realised that the HIV posed a new threat.
At the very moment when people imagined freedom, a new threat to life and a new threat to equality and to and to dignity,
and that it was something that we would we would have to deal with.
So what happened was that when it came to testing the the Constitution,
although the Constitution contains this provision, everybody has a right of access to health care services,
including reproductive health care,
which we often forget that including reproductive health care parts and says and it's a progressively realisable rights.
Instead of this fight being around the amorphous notion of health care equality of health care services,
it focussed initially on the lightning rod of the HIV epidemic and the needs of people living with HIV for access to treatment.
And that, of course, was a life and death issue because by the middle of the 1990s or 96,
just after we got our freedom, HIV was becoming a manageable and treatable condition in developed countries.
But our epidemic was taking off and an HIV infection in 1997, 1998 or before almost inevitably meant death.
And it also meant inequality because the only people who could get treatment in 97 or 98 were people who.
Had the benefits of wealth and access to medical medical insurance, in fact,
Kate and my colleague Edwin Cameron, Justice Edwin Cameron, who's just retired,
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.
It cost four thousand rand per month for treatment today and I'll come to this treatment costs about 100 rand per month,
and that is a lot to do with the with successful litigation.
But at four thousand rand per month, there was no possibility of poor people having access.
So if you were infected with HIV, for the most part, you died of of AIDS.
And that was the basis on which we began to litigate the right of access to health care services.
There isn't time to go into the organisational history or background,
except that I want to say that it started with a legal litigation public interest litigation organisation called the Centre for Applied Legal Studies,
where Edwin Cameron was based and where there had been litigation around political rights in the 1980s.
So there was a there was a contact, there was a bridge, if you like.
And in the first half decade for the 1990s,
much of the litigation around rights focussed on rights related to equality to non-disabled non-discrimination.
We had two very important cases which laid foundations successful cases.
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.
It was called the McGeary case and the second establish the rights of people living with HIV not to be discriminated at work.
Kate, I think, was there for that. Known as the Hofmann case and very important judgement that we one where the Constitutional Court said,
you know, nobody should be condemned to economic death because of of of HIV infection.
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.
Partly because I think that in the context of this evening's discussion,
that's the area where you can provide the most measurable results if you like.
As as litigation outcomes, you can talk about the number of lives or deaths prevented as a result of that litigation.
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.
This would have been impossible, and I have to stress this because it's still in South Africa today.
We have a debate with people who advocate for social justice and on the left about whether the
Constitution is a sell-out and has can play any role in narrowing inequality and improving lives or not.
And I think that we the proof is in the pudding as as I'll describe now when it comes to access to treatment.
There are really there were really two streams to the litigation,
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.
In the discussion about the link between social movements and litigation and social movements and lawyers.
And it's a critical link, an organisation called the Treatment Action Campaign.
But I would say that those two streams to litigating health rights were a stream
around targeting corporates in relation to the affordability of medicines.
And the second stream targeting the states around accessibility.
The World Health Organisation says when it comes to medicines, you have to have availability, accessibility, affordability, all the necessary.
Here we're talking about affordability and accessibility. Skilful litigation by the treatment action campaign in relation to affordability first came
into effect to defend the piece of legislation that the South African government had passed
to give them powers to issue compulsory licences to erode to some extent intellectual
property law within the framework of the trips agreement of the World Trade Organisation.
The South African government was busy losing that case, and the treatment action campaign came in and, through an amicus curiae,
made it forced the pharmaceutical companies eventually to cut their losses and walk out of that case.
The fact that the South African government then didn't use the powers that the
legislation had gave them is perhaps something will come to in the discussion.
The other thing I want to say about the novelty of of litigation around health rights,
which I think the treatment action campaign demonstrated was its ability to apply other areas of law to constitutional law.
So a very important case was brought in 2003, challenging to pharmaceutical companies and the competition law,
arguing that excessive pricing of medicines was a violation of the rights of access to healthcare services,
and that the state was under an obligation to intervene in the market where there was profiteering from essential medicines.
And that case too was settled.
But it was a critical case because as a result of that case, it became possible to issue voluntary licence licences for antiretroviral medicines,
which meant that these four thousand random months went very quickly to several hundred grand a month,
which meant that medicines became affordable within a few months and affordable to the state to supply through the public healthcare system.
So that was that stream. And then the other stream,
which those of you who have studied this will know much better is the case is around affordability that
were brought by the treatment action campaign and the most famous case being what we know as the case,
which was a case against the South African government who were refusing to provide a very simple regimen of antiretroviral
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.
In most, most instances, and we brought that case as the treatment action campaign, the lawyers with the legal resources centre.
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.
But they were very good lawyers and in particular because they allowed the client
to run the show and the lawyers to do what lawyers are very good at doing,
which is practise law and do what you ask them to do creatively with with law.
But that was a very, very difficult, fractured case. I'll mention because we may come to it later.
We brought it in the name of a doctor, a children's rights organisation and the treatment action campaign itself.
And it led to a Constitutional Court order to the South African government to to roll out a programme
to prevent mother to child HIV transmission and to make this particular medicine available now.
If you want to quantify in lives, that's what that case achieved at the time that we brought that case.
Seventy thousand children were being born with HIV every year.
The rates of transmission was approximately 26 30 percent.
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.
Now there are less than a thousand children born per year with HIV,
and the rate of mother to child HIV transmission has gone down to under two percent of all pregnancies.
And I think that is a result of successful utilisation of litigation by it, by a social movement.
So the TAC case broke the resistance. The the competition law case made medicines affordable,
and the two gave the treatment action campaign impetus and authority to demand treatment as a right for all people living with HIV.
And on that wave, we now have five million people living with HIV,
receiving antiretroviral medicine through the public health care system and therefore able to prevent the development of HIV infection into into AIDS.
I believe there's a direct causal connexion.
The causal connexion takes many forms. It wasn't just the pure instrumentality of the litigation,
it was also the confidence that the litigation gave the sense of power, the sense of justification.
So let me conclude just by by by saying this, I from this litigation litigating health rights, I draw the following conclusions.
Firstly, I would make a number of statements about the intrinsic value of rights when it comes to litigation,
and I would separate that into an intrinsic value that is both internal and external internal it legitimate rights advocacy.
It gives powerless people a sense of power and authority, and I witnessed it with my own eyes.
If you call something a right, it has a lot more power. It instils you with a belief in your cause.
This is a this is a right, then something that is not a right and that's often neglected.
It doesn't matter what the right spending is in law.
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.
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,
to be transparent, the power of remedy and relief, the power of the power that comes with with accountability.
And the second things I want to just quickly mention is about when we're talking about
litigating rights is about issues to do with the process of use of of of litigating rights.
And the point I want to make here is that we often talk about litigating rights as if it's
the point where you issue your letter of demand that it stops when you get your judgement.
I would argue that the process of litigating rights starts long before that and ends long after the judgement.
You know you start threatening law, sometimes without any basis, to be honest with you.
But you can do that long before the point.
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.
And the other misconception is that successfully litigating rights involves getting a successful judgement.
Many of the cases in South Africa, not just in relation to health.
That victory is often in the settlements, forcing settlements through through rights litigation.
And then there are just a series of issues that will come to in the discussion.
What I would call the art of litigating rights, the role of client versus vis-a-vis the lawyer.
How you balance individual cases. Individual the needs of the individual clients against the public interest,
particularly when the settlement is offered to the individual knowing when to settle.
Flexibility in recognising how the legal terrain will change while you're in the process of of of litigation.
How you use and present evidence in litigation around rights.
How you present voices in order to build empathy, both inside the court and outside of the court.
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.
We have created, I believe, social justice in relation to HIV.
If social justice is defined as a equality of access,
but HIV has become a sliver in relation to the continued broader injustice in relation to the right to health as a whole.
And in the last 10 years, we have been trying to use rights and the Constitution to deal with those other injustices.
And we've had a much more difficult job of it.
And if I hadn't run out of time, I would have told you why I think we have having a difficult job.
The new space that we are moving into in terms of politics, economics, shrinking democratic civic space, the primacy of budget issues in responses.
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.
If we are to retain credibility for human rights and for litigation as a means
of unleashing the power that exists within human rights and health rights.
In this particular instance, it was fascinating.
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.
I studied French and Italian literature here.
And one of the reasons I think a couple of things that are formative for the way in which I use the law now.
One was my literature degree. Another was that I then went off and directed theatre,
and that was the route where and it was political and it was intended to transform the world transport.
And I think art can. Mine was not doing it in the way I wanted it to.
So I left and in existential crisis, wrote to a couple of charities.
And can I be useful not expecting anything to come of it in the place that I ended up with?
Reprieve and reprieve converted me to the law rather than I converted to law.
I had much like, you've been sort of sceptical of the law and I remain.
I think I was right to be. I was I was angry with it as a small child.
I just think it's also appropriate and I've softened with age.
But as a tool, it is made to support the structures that exist in the structures that exist as structures of power.
And I was somebody who cared, and I still care deeply about parts what attracted me to reprieve.
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.
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,
a reprieve mentioned works on death penalty and then abuses in counterterrorism issues.
Two things that I cared about you know somebody who cares about power,
those areas where state uses the greatest force it can to end the life of one of its citizens or someone else,
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.
So I arrived at Reprieve was doing some research on the day that there was an execution scheduled in Arizona,
and we got a call in via the at the time by the founder of Reprieve.
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.
And he got a call from an old Capitol.
Another lawyer from the Deep South who had been doing this death penalty case set up my guy scheduled for execution tonight.
We've just found out that the drugs they're going to use to kill him have come from somewhere in England.
Can you figure out anything about these drugs that we can use?
And Clive is the founder called The Office and said, Look, you know, it's probably hopeless.
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.
And it was really fascinating to start digging in.
I think I'm going to talk about the different things that I think make you successful and be successful.
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.
One of the key components is investigation, and I think maybe lawyers aren't.
Some lawyers aren't. Ought to investigate as much as they should be, because facts change everything,
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,
you know, not get anywhere, but that those hours are going to be the hours that certainly in my experience,
those are going to be the hours that change the way you can run the case. So in this instance, I dug around.
I was trying to understand the pharmaceutical industry for the first time and
figured out a few things about the drugs that probably they weren't good. Maybe they were veterinary, maybe they were unapproved.
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.
Send it across to the lawyer. The lawyer gets me to turn it into an affidavit that gets filed,
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.
So for us, cruel, inhuman or degrading treatment or punishment for them, cruel and unusual.
And it gets us day and I cycle home thinking, Oh, this is great.
This is. And I get back, go to bed, wake up the next morning to the World Service.
And they say that Jeffrey Landrigan, after a brief stay of execution,
had been executed earlier that morning so that there were few key things there, one that he was executed.
I have lots of thoughts about the way in which the US, particularly the Supreme Court,
interprets that provision of the Eighth Amendment freedom from cruel and unusual treatment or punishment.
I think it's actually about the spectators ask the public and the rest of the citizens and less about the prisoner.
And I can come back to that if it's if it's of interest later. And that was one thing.
The other thing I was all about. I mean, at a relatively superficial level.
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.
When you look into it, you discover that there are lots of different links in that chain.
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.
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.
So those were interesting things. I set those aside. We have discovered that these drugs have been sold from England.
This guy was executed over the next really just days.
We tracked the other executions that are taking place using these British drugs and where they had come from.
And we, I think probably the next day, the day after launching his execution, wrote to Vince Cable,
who was then the business secretary, and it was me writing to the business secretary pretending to be Clive.
And so I had to make it really pompous. And he would appreciate my saying that.
There was lots of Shakespeare in it. It was it was a very non-legal style letter, but it was pre-action correspondence.
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.
Something really unreasonable because we can be very unreasonable.
And again, it sort of sometimes you throw out the protocols anyway, you need to do this.
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.
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,
we won that case and we won that case because in the middle of it was an expedited
hearing and a few days in the government's lawyers came and we spent it on.
Essentially, they changed their position. They said they would impose an export control.
This all happened within a matter of weeks of us discovering of Jeffrey Landrigan execution, in fact.
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.
We want it because we were we had our facts right.
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.
Therefore, the only drugs being sold to the US at that point,
the only sodium thiopental being exported to the US at that point was for the purposes of executions.
Our legal case was based on the principle that the British government opposes the death penalty.
Our law does not allow for it. And therefore in some way assisting or facilitating the death penalty in another jurisdiction,
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.
We. Investigated, got the facts, but we also met a lot of noise about the case in the court of public opinion.
One of the really important court for that,
you'll have to work and I think if you're going to be successful in terms of litigating rights and impact litigation.
And we were also pretty active politically. And that gets you to so they change their mind.
They put an export control in place on sodium thiopental. We then get that same export control in place across Europe.
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.
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
yourself between the people with the power and the people without or to provide additional power to those powerless,
you know, structurally have been deprived of that power being abused.
You are going to have to find other court fora to occupy at the same time.
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.
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.
In fact, there's probably five that I could name the main ones.
The traditional courts, which are untraditional, are court of law, fine court of public opinion, the press, the media.
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.
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.
I think the fifth one would be a sort of artistic one, perhaps that maybe we are not doing.
And you had Wolfgang here recently. I know he thinks about this a lot.
I think maybe as lawyers and legal organisations and third sector organisations,
we could be exploiting that courtroom a little in a more sophisticated way.
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.
And it wasn't actually, I don't think I I don't want to say we wouldn't have won,
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.
And then, of course, all these states couldn't get hold of that one drug. They moved to other drugs.
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
the issue of the drugs used in executions because this was it could look very bleak.
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.
And if you have an innocent client, absolutely you are doing that.
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,
but it's also extremely difficult to win those sorts of cases, I think sometimes coming at issues from this oblique angle.
According to the Supreme Court justice, who and may he rest in peace, Scalia guerrilla guerrilla warfare, guerrilla attack on the death penalty.
Sometimes you do need to be looking at things from these different angles, so oddly.
I started working with pharmaceutical companies to try to change the way in which the US carried out executions.
And the theory of this was the US uses the lethal injection because at present, it's a palatable.
It looks clinical. It's seems palatable. It is the modern face of the death penalty.
And of course, it's anything but that.
So if you move states away from the lethal injection, you see approval ratings for the death penalty per state just dropped dramatically,
but you also see fewer executions because it's the practical mechanics that sound in the machine.
And what I discovered on that first evening of researching this was these companies don't want anything to do with the death penalty.
These medicines weren't made for this purpose.
And they go through lots of different jurisdictions before they end up in the US, in these on these death rows.
So what we did at that point was looked at, worked with the first company.
I had this conviction that these companies could control where their medicines go.
They can in order to convince the first company, I had to design the distribution system for them.
That required me as somebody who also doesn't is not a not a real lawyer.
You are really I'm not a real law to design these distribution systems.
It wasn't just contractual arrangement, it was understanding the way in which that industry worked in order to be able to work out,
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?
It was highly technical, figured it out ended up. One other snapshot along the way I did lots of press in Denmark.
The company was Danish, including on one occasion bringing a lizard to a press conference, which I put on the table, a live lizard.
And I people, everybody you know, will will be useful at some point.
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.
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.
But although it did get under the skin of one of the guys at Lundbeck,
but designing a system that's going to work and I ended up in a meeting with the CEO of this company,
who when I described the system, his PR guy, he was the one who got really upset about the lizard said,
Yeah, but you know, we're stuck between a rock and a hard place.
We have all these patients, just a small number of prisoners and can't deprive all those patients, which sounds very rational.
But it was this false dichotomy that a lot of companies had used over the years.
And the CEO put his hand across and said, Well, why?
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.
And if you actually were invested, you know, two things had happened. One, it had Matt, I'd made it matter.
And if you can.
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.
And if you are trying to help people without power,
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.
Sometimes they don't care. Sometimes you can bring them to care.
And as a crossover in the Venn diagram of their interest in yours, that's where you've got something some real potential.
So we managed to convince this company to put the controls in place.
And over the last few years, every other company has done so as well. The one of the things I mentioned,
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,
you get to play in lots of different jurisdictions as well as different court for us.
So when one of the companies I was working with didn't immediately want to do what
I thought was the right thing to do for that business and also our interests,
they. And they were really pushing against us having a bit of a fight,
and then they inverted the tax inversion and they moved over to the Netherlands and suddenly they were in this other jurisdiction where
we could file an obesity complaint and do various other things because they had expose themselves to a whole other legal system.
So a lot of what Reprieve does is tries to leverage these different international actors using the law.
And the last thing I will talk about because there wasn't a lot of time and I want
to make sure there is time for the conversations is just on that same theme.
You I think it's incredibly it's incredibly creative.
It's a really fun, creative endeavour to use the law in this way where you're looking at the world
and you're looking at the different legal systems and basically the principles, human rights principles,
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
looking at the connexions between different governments and different supply chains or whatever other other links you can find,
but equally, don't just look at the traditional legal frameworks.
It's not, you know, the Human Rights Act in Britain. British courts and indeed the government.
If that's if you're if you're fighting the state, they know those arguments. They are really well armoured against them.
And the national security argument says that really hard challenges to bring because the law is against us.
But if as somebody who works in an organisation,
you can be thinking about the contract law and that can stay an execution because some company actually intervenes and says,
my contract's been broken here and then you end up not having somebody executed in Nevada, which happened last year.
That's amazing. Or we used the Data Protection Act, which sounds like a really dry piece of legislation,
but we've managed to get exculpatory evidence about one of our guys on death row who was on death row.
Actually, he was put there with the assistance of the Brits and it was in Kenya and through the litigation, and it was both.
There was a judicial review which we didn't get to the end of, but we did get disclosure, which was very, very helpful.
But I think the law is a tool for forcing governments to be a bit more transparent.
It's incredibly helpful and then you have to be creative with what you get on this case in two
instances of British complicity in the death penalty in two jurisdictions Thailand and Kenya.
We were able to get information that contributed to us being able to advocate for those individuals.
And in one case, the death sentence was overturned on appeal, pending an appeal.
So I think that's my message to lawyers in general is that, yes, the law is very useful.
And if you want to do individual cases, we need lawyers who are working on individual cases,
and I have so much respect for the people who are doing that.
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.
Perhaps pulling away from it from quite a narrow view of what the law is and trying to play in these different,
different courtrooms that have opened up to us. And it's really fun.
Mark spoke more about clients, but via didn't speak that much about clients,
and I wondered whether one thinks about who makes decisions about legal strategy in circumstances where you where you have a client,
whether an individual or an organisation or social movements, and how you manage that decision around strategy and the relationship with clients.
And also how one manages a situation where there may be a conflict of interest or between an outcome or strategy an
individual client or organisation wants once and the one that you think is appropriate for the goal of the litigation.
Yeah. Do you understand?
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,
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.
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.
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.
Exactly. So I think it's unusual for there to be a conflict in that circumstance because
the objectives of the same and we occupy sometimes slightly different terrains.
The only area where it does get complicated and I think it's very interesting is around strategies on methods.
So if you think that the end of the death penalty will come about because states will move away from
lethal injection and you are in a position where your client gets to pick which method of execution they.
Not even gets to is obliged to pick a method of execution that can be conflict.
And then. Of course, it has to come from the individual, but if you are working as an organisation,
we have a set of cases right now in Syria where I work with a number of individuals.
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
your resource behind a case if you don't think it's going to have an impact for the,
you know, I think if you don't think it's strategic.
So I think there are usually ways to navigate a potential conflict, and I think it is about being really honest in the conversation,
in the way in which you pick cases incredibly strategic because you pick.
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,
to ensure that that anything you do is serving both the broader interests and the individuals.
But perhaps, you know, it's sounds quite general, I think. No, I agree.
I think it's hard to make hard and fast rules. It will differ from case to case.
And so really, what you need to do is to try to work out what's a set of guiding principles and then
check off those guiding principles as to what to do in in a particular situation.
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.
You know, I've faced this on quite a number of times and, you know,
taking the individuals and there's always lessons to this is ultimately if a client's interests, individual interests have to be paramount.
So I mentioned the South African Airways case, you know, before it got to the Constitutional Court,
we had a case actually started with a case that was run by the AIDS law project.
A person called A. And we built a beautiful case.
We got a lot of publicity. We began to shape public opinion. We had all the right facts.
And then South African Airways came along and offered 100000 rand. And for this person, 100000 rand was was manna from heaven.
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.
There's also the fear of the spotlight, the issues of confidentiality, a whole bunch of stresses.
But but if you're in it for the long haul, you know what happened with the South African Airways case was, well,
we were later able to bring in all of that evidence that we got in another case of exactly the same facts.
So we we won that case eventually. And one of the things lessons we've drawn from that subsequently and we
sometimes forget to apply it is try to have if you're working for an individual,
try to have a organisational client as well,
so that if the state tries to settle or whoever tries to settle with the individual,
the case can be carried forward by an NGO or by it, by by by a social movement.
Then the other thing that I would say just in response to that, though, is is that it is a tricky relationship.
And I joked about know the treatment action campaign.
In this case, I would say I was the treatment action campaign and the legal resources centre was was the lawyers.
I think, first of all, that lawyers have a responsibility to empower the client organisation in the law.
So to try to narrow that information asymmetry so that that they can actually be a real
discussion about at critical moments of of of legal strategy and within the taxi,
we always not just made sure that the team that worked with the lawyers understood the law,
but we also made sure that the members of the treatment action campaign understood the law and people in branches in the most poorest
parts of South Africa could talk about the medicines and the virology of the medicines and how they were patented and secondary patents.
And and and could could often say to us, No.
People don't go in that particular direction,
but it's a balance because what I find with people who are trained as lawyers is there's often a conservatism,
even amongst the most progressive of trained lawyers.
There's a point at which a lawyer will tell you, there's a wall there and you can't go past that wall.
And we will often say, No, you can go past that wall. Actually, believe us, you can go past that wall.
But we too have to be accept that you bring lawyers on board for a reason, which is that they have knowledge,
they have expertise, they know what they're talking about for the most part.
So it's a it's a dialogue. It's a continual dialogue to work out what is the.
The best way forward where both have to be prepared at different points to defer to the other.
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
clinical psychologist and really she we've brought her into some of the cases where.
Started where there were some victims who wanted to participate in the impact of civil actions and then the criminal actions.
But they had been victims in the case, so we needed to ensure that that interests were feel ethically to go,
that their interests were being sort of respected and that they weren't being dragged along.
They wanted to work with us, but we are not clinical psychologist ourselves.
And this was a very vulnerable person. And what I've seen in working with this particular individual is absolutely
brilliant and really thinks about justice and what justice means to individuals.
Obviously, we have to think about it too. You talked about rights, and that was really fascinating.
There is a different going through a process and going through a process and being treated with
respect and being given the information is some such a big part of how people feel about the outcome.
It's not necessarily that there was a conflict between one strategic line of thinking and another.
Or yeah, sometimes it's simple as a damage damages claim and you know, somebody settles or they don't.
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.
And lawyers are not massively creative, too often not the best equipped to work humanly with the clients.
And we do work with some of the most vulnerable people who many of whom have been tortured,
many of whom remain in conditions which could constitute torture, ongoing torture.
So there's a there's another person in there in the dialogue, I think,
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.
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.
I don't use citizens in the narrow, nationalistic sense, and I've seen it on on numerous occasions,
and that's so important for society and for social fabric.
And not I often give this example because I like to call up her memory.
You know, in the case.
There was a woman called Sarah collateralLy who lived with HIV, and we she had a horrible story, terrible, tragic story because of stigma.
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.
And then she went into labour prematurely and forgot her tablet and was taken to a local hospital.
And so she knew everything about how this medicine reduce the risk of transmitting to the baby.
But she couldn't tell the people at the hospital, and they weren't providing the medicines at that point.
And that was the the story of Sarah and how her baby was born with HIV.
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.
I met her in a place called Charleville, and I went into her little house and asked to see Sarah.
And there was Sarah sitting in a corner.
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.
Because of the stigma and fear of HIV sobbing uncontrollably, this completely broken person.
And we built a relationship with Sarah through the litigation, through the campaign and within a year.
I remember after the court case before the Constitutional Court.
You know, seeing this person who one day stood outside of the Pretoria High Court with her baby in her HIV positive t shirt,
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.
And it happens in the situations that Maya's talking about happens in the situation that we described.
And I think it's an enormous plus to litigating rights.
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.
People might then have said it was, you know, it was a strategic conflict.
You know, sometimes these things that are just very human are at the heart of something that we create.
We decide it is political or legal strategic conflict.
Well, thank you both really very engaged responses to all those questions,
the very interesting evening, would you join me in thanking to visit host countries and perhaps.