Legal Determinants of Health

Lawrence O. Gostin

Good evening, I’m Larry Gostin. I’m a Professor of Global Health Law at Georgetown University in Washington D.C. and the Co-Chair of The Lancet Commission on the Legal Determinants of Health. I have to start with just some ground rules. We are here at Chatham House, but it’s not Chatham House Rules. It’s actually on the record and it’s being livestreamed, just so you’re aware of that. I’m really delighted to welcome you, on behalf of Chatham House, which is very appropriate, because this is a multidisciplinary think tank. Rob Yates has been the organiser, with Emma Ross. The Lancet, the world’s greatest medical journal, Richard Horton and Pam Das, Editors, are here. Georgetown University, in the O’Neill Institute, John Monahan, the other Co-Chair, is also here.

I want to just begin with a quick story that I had, when I was a very, very senior official at WHO, who asked me, “Larry, you know, I like your work, but what does law have to do with global health?” And my – and I was taken aback. And so, I said, “Margaret, everything.” So, what I’m going to do tonight is just frame it. I’m going to ask, imagine two big questions. The first imaginary question is, what would an ideal state of global health, with justice, look like? And then the other is, what would an ideal state of law look like, in relation to health?

So, in terms of the – of what global health is, it might sound like a naïve question, but I think that the world really organises itself completely in the opposite direction of what populations need to be healthy. They basically need three things. One, they need universal health coverage, that is affordable, accessible primary, secondary, tertiary, emergency care, palliative care, access to essential medicines and pharmaceuticals. But beyond that, they need public health services, and I often think that that gets lost, because, you know, if I live in a world and I could never see a Doctor again, I would take that trade, if I could get up in the morning and go to the bathroom, turn on the tap and there’d be clean water, go to the kitchen and there’d be safe, nutritious food, leave the home and I wouldn’t be attacked by malarial or dengue infected mosquitos, or bubonic rats. I’d get in a safe vehicle and safe roads, there’d be tobacco control, alcohol control, clean air. These are the things that really make people healthy.

But if you ask any astute Epidemiologist what is the single greatest predictor of a person’s health or lack of health? They will tell you, it’s the person’s postal code and that is unjust. So, the socioeconomic determinants of health are absolutely critical and they’re really not even within the health sector. Things like employment, housing, gender empowerment, all of the things that make people healthy. We forget, we’re animals and we actually either thrive or fail to thrive, depending upon our environment and where we live. It’s critically important.

So, what would an ideal state of law look like? Well, an ideal state of law really is, first and foremost, justice. That is, law is but the means, justice is the end. And while we have made enormous progress in global health, since the Millennium Development Goals and hopefully, sustained in the Sustainable Development Goals from the UN, we’ve failed to keep our pledge in the Sustainable Development Goals of leaving no-one behind. There are shocking disparities in health around the world. This can be in – within a country, for example, in my own country in the United States, if you go to one place in Kansas, the life expectancy is about 89 years. If you go just a few hundred yards away, the life expectancy is 30 years less, and one sees that with indigenous communities around the world, and with people in poverty, women and others, and this really, truly is unconscionable. And so, we need to fulfil the promise of equity in our health. We need to distribute health in a fair and equitable way, so everyone benefits.

The other thing about the ideal state of law is that that abides by the rule of law. The rule of law is absolutely critical, so that everybody, no matter who you are, has to abide by a legal code, not be corrupt, but be a faithful public servant. Third, it requires good governance and particularly, accountability. People who make decisions need to be accountable for their successes or their failures and civil society, the public, the community, needs to be able to hold people to account. Just as Cameron, for example, in South Africa made a very important rule and requiring an accountability commission in that country.

And then finally, law is a tool for the public’s health. I’m going to explain that further in my remarks in the panel, but a lot of people think of law as involved in only infectious diseases and of course, that is very important. David Hayman is here. He’s been working with the International Health Regulations, for example. But it also affects non-communicable diseases, the prevention of cancer, heart disease, respiratory disease, diabetes. In fact, law can have an enormous impact on that and I’m going to explain it, and while we tend to think of injuries as accidents, it’s the last thing they are. They’re probably the most preventable public health risk there is. We’ve done it with car crashes, but we can do it in so many places, in occupational health and safety, and many other areas, and then in the field that Baroness Hale and I were involved in earlier on, in mental health, and the Mental Health Act.

So, with that, I’m now going to transition to something that gives me real humility and privilege, which is to introduce Baroness Hale of Richmond. We’re – I’m very proud to say we’re friends for many, many years. We – especially in the mental health movement and for the rights of persons living with mental disabilities. She was a – the greatest thought leader. She is currently, as many of you, as all of you will know, the President of the Supreme Court of the United Kingdom, and appointed in September 2017. In October 2009, she became the first woman Justice of the Supreme Court, and you’re going to hear that theme about first woman pioneering in so many areas. In January 2004, she became the United Kingdom’s first Law of Appeal in Ordinary. She was the Founding Editor of the Journal of Social Welfare and of Family Law. As I mentioned, she’s also written a book on – a great book on mental health law, when we were both a little bit younger, I think. She was the first woman to be appointed to the Law Commission, a very important body where her team worked on things like the Children’s Act of 1989, the Family Law Act of 1996, and the Mental Capacity Act of 2005, and particularly the Mental Capacity Act is one that I followed very, very closely, because of my interest in mental health law, and it was fantastic. She’d previously served as the Chancellor of the University of Bristol, and I love this in your biography, because so, it just expresses who you are and the humility that you have, Brenda, “A homemaker, as well as a Judge.” And that’s the way we should all be. We should all be, you know, parents, homemakers, before our professions, and so, she did. And I remember we were talking, at the time you were doing it, helping the Artists and Architects create the new home for the Supreme Court.

So, it – I think the last thing I want to say isn’t in your bio, but having known you for such a long time and read your judgments and talked and read your scholarly work, there’s no greater humanist on this earth. There’s no greater person who stands up for the rule of law, for justice, for all of the things that we’ve been talking about and will be talking about tonight. And so, I’m so delighted and so honoured that you’re here, Brenda, and I welcome you to come up and give a few remarks [applause].

Lady Hale of Richmond

Well, all the Americans I know are enthusiastic, but there is none more enthusiastic than Larry. So, thank you for that overenthusiastic introduction.

Lawrence O. Gostin

You can pay me later.

Lady Hale of Richmond

Well, very sweet and kind of you and I’m delighted to be here, because we’re here to congratulate The Lancet Commission, the O’Neill Institute for National and Global Health Law and Georgetown University Law Center, for this impressive piece of work on the Legal Determinants of Health. The message of it is that “The law is a wonder drug.” I love that phrase. “Laws themselves can save countless lives and improve the health of nations.” Now, this message is perhaps counterintuitive to those who feel that the law should stay out of people’s lives, as much as possible, who fear or complain about the so-called nanny state. Actually, everybody I know who had a nanny, and that’s not very many people, rather thought nannies were a good thing, than the bad thing, so I’m not sure that that’s a term of abuse. But such laws are, of course, also a threat to some major business interests, who will fight hard to challenge them, as we, in the United Kingdom Supreme Court, have experienced.

There are two aspects to this. The first is the use of laws to encourage healthy living and discourage unhealthy living, principally smoking and drinking, occasionally eating, as well. Now, these have frequently been challenged in our courts by industries which make a great deal of money out of making and selling alcohol and tobacco products. Note that none of the laws that we have had has actually banned smoking or drinking altogether. It’s more a case of nudging people in the right direction, and in this country the best known example is a case brought by the Scotch Whisky Association in 2017. The Scottish Parliament passed the Alcohol (minimum pricing) (Scotland) Act 2012. This was to address the health and social consequences arising from the consumption of cheap alcohol, by introducing a minimum pricing regime. The ready availability of very cheap, very strong spirits in Scotland is a known health hazard, hence, the licence which any retail seller of alcohol for consumption off the premises, was going to have to include a condition that an alcohol product must not be sold at a price below a statutorily determined minimum price per unit of alcohol.

So, a group of alcohol producers, led by the Scotch Whisky Association, challenged the Act under both domestic United Kingdom and European Union Law. The matter was referred to the Court of Justice of the European Union, before it got to the Supreme Court. The Scottish Government accepted that minimum pricing would affect the market and EU trade in alcohol. The issue was whether the interference could be justified by the objective of protecting health. The Court of Justice described the objective as, “Reducing, in a targeted way, both the consumption of alcohol by consumers, whose consumption is hazardous or harmful, and also generally, the population’s consumption of alcohol.” In the Supreme Court we pointed out that the objective was more refined. The aim was not that alcohol consumption be eradicated, or that its cost should be made prohibitive for drinkers. It was to strike at alcohol misuse and overconsumption manifesting themselves, in particular, in the health and social problems suffered by those in poverty, in deprived communities. Hence, the Supreme Court rejected the Appellant’s arguments that a less restrictive measure to achieve the same aim would be to levy additional excise duties or VAT. Minimum pricing targeted the health hazards of cheap alcohol and the groups most affected by it, in a way that increased taxes would not. Taxes would be felt across the board, in relation to the whole category of goods to which is applied, and would unnecessarily affect groups which were not the focus of the legislation, moderate drinkers who could afford it, like Justices of the Supreme Court, I suppose. But minimum pricing would also prevent the absorption of the cost by retailers, so we said it was alright.

The Scottish Parliament was also prominent in tackling the sale of cigarettes. The Tobacco and Primary Medical Services (Scotland) Act 2010 banned the display of tobacco products for sale, unless by a specialist Tobacconist and not including cigarettes and rolling tobacco. It also banned cigarette vending machines. The tobacco industry challenged this on the ground that it was not within the powers of the Scottish Parliament, because it related to consumer protection, which is a matter reserved to the UK Parliament. The Supreme Court held that the purpose was to make cigarettes less visible to the public, including children and, thus, discourage smoking. This was a public health, rather than a consumer protection measure, and so, it was within the powers of the Scottish Parliament. The Court of Appeal of England and Wales had earlier held that it was not contrary to EU Law to ban cigarette vending machines.

Then, in 2015, the United Kingdom Government made the Standardised Packaging of Tobacco Product Regulations. These were challenged my manufacturers, who represented the major part of the world’s supply of tobacco products, led by British American Tobacco. The manufacturers argued that the regulations were unlawful under international law, EU law and domestic common law. And in the High Court, in a judgment which goes on for 1,000 paragraphs, all of these challenges comprehensively failed and there has been no appeal. The regulations aim to further the WHO policy in the Framework Convention on Tobacco Control, one of the most widely endorsed treaties in the history of the United Nations and adhered to in 180 countries. Well, actually, the UN Convention on the Rights of the Child had been adhered to by even more, but it’s getting close.

The Judge reviewed the extensive evidence, relied on by the Secretary of State and voluminous evidence from the tobacco companies. There was evidence from Australia, which was the first country to introduce standardised packaging, about the impact of the restrictions. The tobacco companies suggested that the Australian evidence proved that standardised packaging actually increased smoking, but the Judge agreed with the Secretary of State that it could be shown to generate modest, but significant, reductions in prevalence. The Judge also rejected a similar argument to that in the Scotch Whisky case, that there was a less intrusive, but equally effective way, of addressing the government’s health concerns by an increase in tax.

As for the argument that the companies had a powerful private interest in their trademarks, which trumped the public interest in health, the Secretary of State reformulated this, as, “A claim that the tobacco companies have a right to maximise their profits for the benefit of shareholders by promoting a product that shortened lives and caused a health epidemic of colossal proportions and which opposed – imposed upon the state a vast financial cost.” The Judge not only came down in favour of the side of the public purse, but observed that, “It is wrong to view the issue purely in monetised terms, alone. There is a significant moral angle, which is embedded in the regulations, which is about saving children from a lifetime of addiction and children and adults from premature death and related suffering and disease.”

He also rejected claims that property rights had been expropriated, finding that the use, rather than the ownership, of the trademarks had been affected. But he would not have ordered compensation to be payable, had it been a case of expropriation, because as he said, “There is no precedent where the law has provided compensation for the suppression of a property right, which facilitates and furthers, quite deliberately, a health epidemic. And moreover, a health epidemic, which imposes vast negative health and other costs on the very state that is then being expected to compensate the property right holder for ceasing to facilitate the epidemic.” He held it was, “no part of international, EU or domestic law on Intellectual Property that the legitimate function of a trademark should be defined to include a right to use the mark to harm public health.”

Great stuff, even if it did take 1,000 paragraphs. The Judge in question is currently Chair of the Law Commission, which is, of course, our statutory body to promote the reform of the law, of which I have the honour to be a member, as Larry said, for nine and a half years. And it seems to me that the judgment displays a suitably visionary approach to the matter.

So, those are examples of the use of the law to promote healthier lifestyles. Another aspect, of course, as Larry mentioned, is affording people access to the healthcare that they need. We’ve had two cases in the Supreme Court recently about the near total ban on abortion in Northern Ireland. In the A and B case, there was a challenge to the Secretary of State’s policy of refusing to provide NHS abortion services in England for women from Northern Ireland, meaning that if they could get over here, they had to go privately, instead. All the Justices agreed that the women’s right to respect for their private lives, protected by Article 8 of the European Convention on Human Rights, was engaged, and that the failure to provided free abortion services, constituted discriminatory treatment, compared with those who were usually resident in England. However, a majority of three to two held that the Secretary of State was entitled to adhere to the overall legislative scheme, which provided that the four territories of the UK have control over their own health services and to afford respect to the democratic decision of the people of Northern Ireland to do nothing about it. I’m not sure that that was the democratic decision, but the effect was that nothing was done.

Lord Kerr, who is our Justice from Northern Ireland, and I, and I don’t know what my qualification was to rule on a matter like this, strongly dissented. Lord Kerr thought there was no legitimate aim for the policy, and I considered that the interpretation of the NHS Act 2006 should have regard to the fundamental values underlying our legal system, including autonomy and equality. The story, though the case was lost in the Supreme Court, had a happy ending. Soon after the judgment, the Scottish Government announced that it would provide free abortions for women from Northern Ireland and then the Secretary of State changed the policy in England, as well. So, sometimes litigation can have an effect, even if you lose.

And the same is true of the second case. There was a claim brought by the Northern Ireland Human Rights Commission that abortion law in Northern Ireland was incompatible with the prohibition of torture or inhuman or degrading treatment in Article 3 of the European Convention, or with the right to respect for private life in Article 8, in cases of fatal or serious foetal abnormality or pregnancy as a result of rape or incest. By a majority of four to three, the Supreme Court held that the ban was, indeed, incompatible with the Convention rights in cases of rape and incest and by a majority of five to two that it was incompatible in cases of fatal foetal abnormality. However, a different majority of four to three held that the Northern Ireland Human Rights Commission did not have the standing to bring the claim and so, the claim was dismissed. You have to admire the intellectual honesty of the person who was absolutely convinced that the law was incompatible, for the reasons that he gave, at considerable length, but was equally, absolutely convinced that the Commission did not have the right to bring the claim.

In the aftermath of this judgment, one of the women whose case had been put forward by the Commission as evidence of the impact of the ban, brought an action in her own name in the Northern Ireland Courts. Sarah Ewart succeeded in her claim in the High Court on the 3rd of October this year. However, a declaration of incompatibility was not made, in view of the impending change to the law in Northern Ireland. Initially, the UK Government had been reluctant to interfere, as this is a matter devolved to Northern Ireland authorities, but following the breakdown of the power sharing government in Northern Ireland, there is currently no functioning government or assembly there. Hence, the UK Parliament passed a provision that unless the power sharing government was restored before the 21st of October 2019, the provisions criminalising abortion there would be repealed and they didn’t, so it has.

And I mention these as just a few examples of the battles, which attempts to improve public health and women’s health, in particular, can provoke, but they are also examples of the contribution, which the law can make to that end. So, I repeat my congratulations to the commissions and look forward to the discussion which is to come. Thank you [applause].

John Monahan

Hello, my name’s John Monahan. I’m, as Larry had mentioned, the Co-Chair of The Lancet Commission, and it is daunting to come after Lady Hale. What a – let me just say, in addition to your thoughtful remarks, I hope you know that people all over the world hold you in great distinction and great honour for what you did and the Court did here, to stand up for the rule of law. It’s a message that’s needed, not only here, but around the world, so thank you [applause]. I also want to echo Larry’s thanks to our colleagues at Chatham House, to Richard, Pam, all of our colleagues at The Lancet. This has been a great adventure and we appreciate everything you’ve done along the way.

Let me – so, tonight, I’m going to try to set up the panel discussion by reviewing the report of The Lancet Commission, and so, just as an overview, let me just do some base setting, if I could. So, on May 1st of this year The Lancet – O’Neill Institute, Georgetown Commission on Global Health and Law, only Lawyers could come up with a commission that long entitled, launched our – launched this report in Washington D.C. It was the culmination of over four – almost four years of work, by a truly distinguished group of experts, a group almost evenly divided between Lawyers and health professionals, with a strong representation for both the global North and the global South, and including two Former WHO Regional Directors, two Former Ministers of Health from Africa and the Middle East, a Former Assistant Secretary of Health from the United States, a Former US Global AIDS Co-ordinator, the Vice President at the time for health at the World Bank, along with – and a distinguished group of Lawyers, experienced in litigation, legislation and diplomacy. As you can imagine, a mix of strong willed and highly opinionated Doctors and Lawyers might not have worked out so well.

One might think of dogs and cats playing together, or where I’m from, Democrats and Republicans working in harmony with President Trump and the better – greater interests of our country. But I have good news to report, this group was terrific. In fact, quite the opposite occurred, during our deliberations. At the insistence of our health colleagues on the Commission, the Commission agreed early on that our primary audience for the report should be the global health and science community. And most importantly, that our central messages should be one, that the law is a powerful determinant of health, and two, that law is an underutilised tool for improving health with justice, as Larry noted, for – around the world.

So, our report makes three broad points. First, the Commission argues, as Larry mentioned, that, “Law is everywhere and it impacts almost everything.” Put another way, I’d say that law is how we actually do justice, or not, to one another, in all countries, and between countries. Law is a – does many practical things. It defines the rights and duties of individuals, it shapes markets, organises governments, resolves disputes, and establishes and regulates public agencies, private companies and non-profit institutions. And to make it even more complicated, the law also operates at the global, national, regional and local levels, in the context of many different societies and cultures. This leads to a complex interplay of authorities and responsibilities among multiple jurisdictions, officials and laws.

So, what the purpo – the purpose of our report was to lay out, at least as best we could, for a non-legal audience, how this – how that – how the complex terrain of global – of health law works. And in addition, as Larry mentioned, while distinct from law and legal institutions, the Commission also underscored the vital concept of the rule of law, the notion that no person is above the law and that we should all stand equally before the law. This principle embodied, as Lady Hale noted, in many international agreements, speaks to what we should expect of any system of justice, in health or in any sector that aims to make the world a better place.

So, the second point, the Commission made the case that law matters for health and the Commission borrowed heavily, as Larry noted, from the concept of social determinants of health, which has shown that economic and social factors are generally far more powerful predictors of health outcomes for people than the provision of healthcare alone. As Larry said, so much of what we – well, you could tell – you can predict someone’s outcomes by their postal code, or their zip code, as we would say in the United States, and that is a more powerful determinant than access to healthcare, in many cases. So, specifically, the Commission argued that it’s critical for the global health community to pay attention to what we call – we’re calling the legal determinants of health, both the good and the bad ways in which laws and legal systems advance or undermine health outcomes.

On the good side of the ledger, we can see, unquestionably positive benefits from effective public health regulations, immunisation requirements, environmental standards, drug and food safety programmes, occupational health rules, road safety measures, as Larry mentioned, taxes on tobacco products, laws defining the terms of universal health coverage and constitutional rights to health. The list goes on, but these legal interventions make our lives, our families, our homes, our communities, safer, healthier and more productive. And while most of these good laws are, if you will, are implemented at the national and local level, international action has clearly made a difference.

In some cases, international law has moved the ball by enacting formal treaties, like the Framework Convention on Tobacco Control, or soft law instruments that the WHO – like many of the WHO action plans on a wide variety of health issues, from NCDs, to polio, to malaria. The combination of these hard laws and soft laws have had the effect of galvanising country level advocacy and health legislation. In other cases, of course, the international community and leading donors have acted directly and by passing foreign assistance legislations, such as US – the US Government’s PEPFAR programme to address HIV, or by establishing innovative public-private partnerships, such as the Global Fund in Gavi to address other infectious diseases.

On the other side of the ledger, the bad side, if you will, we see just as clearly, the Commission does, sees just as clearly how the health of women, minorities, indigenous people, LGBTQ populations and other less powerful groups is undermined by laws that reinforce their marginalisation. How – and we also see just as clearly how public health is compromised, when private industries producing dangerous products, such as tobacco and firearms, are not effectively regulated. By how we make little progress in combating the global epidemic of obesity, without better regulation of the food and beverage industries, and how access to medicines can be restricted by a global intellectual property regime that needs to find better ways to balance affordability and innovation. And while most of these subjects require more effective national and local laws, there are clearly critical gaps that the international – well, just as one example, and this speaks to the work of Chatham House for many years in global health security, the Ebola outbreak of 2014 clearly demonstrated that the International Health Regulations, WHO and other international institutions, simply, are not ready to prevent a response to a global infectious disease pandemic and we have more work to do.

So, finally, the Commission makes seven specific recommendations for advancing health with justice. One, “The international community should support and evaluate the compliance of countries in developing and implementing universal health coverage laws and regulations.” Two, “All countries should pursue a rights-based legal framework for universal health coverage that promotes principles of equity and non-discrimination, while ensuring access and affordability.” Three, “Health related international organisations should use their legal authorities to formally adopt good governance standards that promote transparency, accountability and effective participation.” Four, “National governments should develop country appropriate mechanisms, such as health impact assessments for all pending legislation, in pursuing evidence-based legal interventions for health.” Five, “The WHO should increase its legal capacity to build a global evidence base for health laws and to work with countries to adopt such laws.” Six, “National governments should convene multisector teams of health and legal experts to develop and implement evidence-based legal interventions that would improve health.” Seventh, and not least, but – and not last, but last, is, “The WHO and The Lancet should partner to create and establish a standing permanent Independent Commission on Global Health and Law.”

We’ve been pleased by the response so far to the Commission’s recommendations into our report. In fact, last month, on the margins of the recent UN General Assembly’s high level meeting on universal health coverage, we launched a new Universal Health Coverage Legal Solutions Network with our partners, WHO, UNAIDS, the UN Development Programme and the Inter-Parliamentary Union. In our report, the Commission cited UHC laws as a case study of how law can be used to translate vision into action for sustainable development. In fact, the number of coun – low and middle income countries currently considering health coverage laws, would’ve been simply unimaginable, even a few years ago. Now is clearly the right time to do all we can, as a global community, to help support countries seeking to draft rights driven and evidence-based health laws.

The UHC Legal Solutions Network will seek to maximise collaboration among our UN agencies and supporting ministries, Parliamentarians and civil society individuals involved in drafting UHC laws and regulations. We also hope to tap the expertise of universities, law firms, Lawyers and other experts in crafting these laws. So, I hope this gives you a little bit of a sense of the Commission’s report, our ambition, and sets the table for what I look forward to an excellent panel discussion. So, thank you very much [applause].

Richard Horton

Okay team, up [pause]. So, now we’ve got a panel discussion and I just want to, while our fabulous panel is assembling, thank John and Larry. I should say my name’s Richard Horton. I’m from a medical journal called The Lancet, which is very proud to publish this commission. Larry has written the definitive textbook on global health law and I forgive him, because he arrived at our offices today with a jacket with the Journal of the American Medical Association on. But that’s okay, that’s okay, that’s okay, I don’t take it personally, Larry. And John Monahan, I’m very pleased to also thank for his Co-chairing of the Commission. When the history of the Global Fund to fight AIDS, TB and malaria is eventually written, John will be credited with having saved the Global Fund, at a moment of crisis, is no less, I think, to describe that.

Now, our panel is assembled and so, I want to introduce them. But first of all, I do just want to say a few words, just from The Lancet’s perspective. Justice is a much used and abused word in global health. You earn your credentials in global health by talking about social justice. But there are, indeed, some very important struggles that are taking place in global health right now, where justice is absolutely foundational to the success of global health, and I would give you, just briefly, two examples. The first relates to the right to health. We have a Director General of WHO, currently, Dr Tedros, who I’m delighted to say is not afraid to talk about the right to health. His predecessor declined to talk about the right to health and did not see health as an entitlement that was justifiably worth campaigning for by the world’s leading health agency. That is not the case for Dr Tedros.

But the question then arises, is what is the right to health? We have General Comment 14, which defines it as, “The availability, accessibility, acceptability and quality of health services,” but what we also know is, that more people die from poor quality health services than they do from lack of access to health services, which is a quite remarkable figure to consider. So, what does, when we, again, use the right to health rather glibly, what does the right to health actually mean? Larry talked about accountability and there is currently a struggle at the heart of global health for the meaning of accountability. We’ve managed to import, from the Human Rights Council and Special Rapporteur system, the notion of monitoring, review, action and remedy for certain domains of global health, particularly women’s and children’s health. But when it comes to the Sustainable Development Goals, we’ve utterly failed to make accountability in that sense, independent accountability, central to our vision for the way we follow the success, or otherwise, of the SDGs. The best we can do is to talk about review, but not true independent accountability.

There are sceptics, however, and we should acknowledge those sceptics. In a widely influential essay published several years ago by Thomas Nagel, “The Problem of Global Justice,” he wrote that, “The path from anarchy to justice must pass through injustice.” And sadly, at the moment it’s difficult to know whether we’re living at times of anarchy or times of simply injustice. We’re a long way from his ideal of justice. We live at a time where it feels that the debate over migration is creating a world where we are not welcoming of people who are in desperate, acute, urgent need and that we are fashioning our laws and, certainly, our norms of debate in society, to exclude those migrants from our circumference of concern.

We live at a time where we have the worst prospects for children, children’s health, ever in the past century, as we build an epidemic of childhood obesity, which will explode as a further epidemic of non-communicable disease, if we do not create the right legal framework to regulate access, or otherwise, to harmful foods and drinks. And we live at a time of a climate emergency, where we see young health professionals, but many others too, create an organisation of Extinction Rebellion, disrupt, in a peaceful, non-violent way, society in order to bring their arguments to bear on the political process. And we see the legal response to that of being arrests of young health professionals for assembling as two people. Just simply two people will get you arrested. That is the legal framework that we are now building around our right to free speech.

Amartya Sen, in his very influential book, “The Idea of Justice,” talked about notions of justice, rule of law, accountability and so on, but he also talked about another very important determinant of our idea of justice, and which I hope we can bring to bear in this panel tonight, and that is the idea of reasoning. Using our reasoning capabilities and our freedoms, our liberties, to reason, together, as a shared humanity, to arrive, collectively, at whatever our notion of justice might be. And we’ve got the panel, the panel, who’s going to reason better than any other possible panel that you could have this evening.

On my immediate right, Yasmin Batliwala, I’m very pleased is with us. She is Chief Executive Officer of Advocates for International Development, which provides pro bono opportunities to its 50,000 Lawyers, can you believe, working worldwide. She’s worked for the United Nations and she’s the Magistrate serving on the youth and adult bench. I’m very pleased to welcome Baroness Jenny Tonge. Baroness Tonge, Jenny, as she’s urged us to call her, was a Doctor in the National Health Service for over 30 years, became a Member of Parliament in the House of Commons, where her specialty was women’s health, was a Liberal Democrat spokesman for international development and now Chairs a group on the All Party Parliamentary Group for Population Development and Reproductive Health. Immediately on her right is Dr Sharifah Sekalala, who has a PhD in law from Warwick University in 2012, originally qualified in law from Makerere University. Sharifah has worked in many organisations, including the International Bar Association in London, worked at its Human Rights Centre, was called to the Ugandan Bar in 2005 and now is a member of the Nuffield Council on Bioethics, and her work has been funded by organisations such as WHO. Larry Gostin, you saw him at the beginning, but you haven’t heard very much about him. Larry is a Professor, a University Professor, at Georgetown Universities, O’Neill Chair of Global Health Law. He directs the World Health Organization Center on National and Global Health Law. He’s created the pre-eminent institution on global health law. Indeed, he’s created global health law through his work, no less.

Lawrence O. Gostin

See and he’s not an American, but he’s very intuitive anyway.

Richard Horton

He’s been on many, many committees, been very influential and writes for many journals, again, for which we forgive him. And then Rob Yates, well, there’s three words that define Rob: universal health coverage. He’s internationally recognised as an expert on universal health coverage and he is, importantly, Head of the Centre of Global Health Security, which is here. It’s now got a new name, Rob, hasn’t it?

Rob Yates

Yes, it’s changing.

Richard Horton

What is it, tell us?

Rob Yates

Right, it’s the Centre for Universal Health.

Richard Horton

Oh, we knew it, we knew it, we knew it, we knew it, and he’s been an expert on political economy of that subject for many years, worked in lots of organisations, including DFID, WHO, and so on. And what we’re going to do now, each panellist is going to have five minutes to display their skills in reasoning, before you interrogate them in your adversarial advocate like way. Please, start, Yasmin.

Yasmin Batliwala

So, no pressure there, then, Chair. A very good evening to you all. I would like to start by thanking Chatham House for organising such a great event and for inviting me to be part of it. We very much welcome, I should say, the Commission report, especially as it rightly identifies the need for the formation of strategic partnerships between health and legal sectors in developing evidence-based law.

Now, I’m delighted to have the opportunity to talk about the work of Advocates for International Development, or A4ID, as we’re better known. We are an international non-profit, with a very clear vision to see the law and the skills of Lawyers used effectively to fight global poverty. We harness legal expertise towards the achievement of the UN Sustainable Development Goals, the SDGs, or Global Goals, as they’re also known. As you will know, the law is often a barrier to sustainable development. The lack of access to legal expertise can, indeed, reduce the expertise of organisations that are working tirelessly to improve access to basic services for the weak and the vulnerable.

So, in these very introductory remarks, in the next six minutes, I’m going to show you how Lawyers are contributing to the health agenda by using their skills, by using their knowledge and, dare I say it, by using their passion in doing so. We work with a network, as has been said, of about 50,000 Lawyers, mainly from leading international law firms, who provide legal expertise to our over 500 – eight, sorry, 800 development organisations, which, to date, have impacted on 130 countries. All this work is done pro bono, for free. A4ID, therefore, places the Sustainable Development Goals at the very heart of its strategy. Now, I’m going to give you three examples, illustrating the actions taken by A4ID’s legal partners, which contribute to the achievement of Sustainable Goal number three, which is health and wellbeing, in the fields of technology for health, a fair price for medicines, and universal health coverage.

Firstly, then, technology. Technology, as we all know, can be a very powerful tool to facilitate healthcare services, including those in the most marginalised communities. But technology in the health sector also involves very complex legal issues, notably around the issue of private health data. One of our development partners, then, called Doctors of the World UK, provides medical care to vulnerable populations and actually wanted to launch an online tool for General Practitioners, so that they could better support migrant patients through the NHS. Refugees, as you all know, and migrants, often need specific medical care, as many have experienced trauma, domestic abuse, or human trafficking. Known as migrant.health, the tool is to serve an information resource, to be used before, during and after seeing migrant patients. It also incorporates an online forum to facilitate discussion between medical professionals, thereby creating a community of practice and importantly, a means of peer-to-peer learning.

A4ID brought its part – law firm partner, Milbank, to assist and advise Doctors of the World UK to draft online use of – terms of use for the website and also, a privacy and cookies policy. One key purpose of this legal support was to protect the charity from potential liability issues associated with the website’s online discussion forum. Another was to inform the individuals, using the website, of how Doctors of the World UK process their personal data, when they visit and use the website. So, this legal assurance, which our legal partners provided, in turn, ensures greater use of the platform and in doing so, makes it an essential tool for General Practitioners and medical professionals.

Now, my second example is regards to the medicines and diagnostic technique. Now, one of the major barriers, and I think that’s already been said, to offering good medical treatment in the developing world, is the price of effective drugs and the new diagnostic techniques. This is an effective of a law, which allows pharmaceutical companies to patent their developments, preventing them from being made widely available, except at a substantial price. It’s estimated that one third of the world’s population lacks access to essential medicines and in the poorest parts of Africa and Asia, this figure actually rises to half of the population.

Our development partner, Médecins Sans Frontières, wanted to support the development of several diagnostic tests and to ensure that they would be accessible and affordable by people in the developing world. They needed to make sure that the patent protection laws do not stand in their way. A4ID sourced highly specialised Intellectual Property Lawyers to assist MSF in this project. They drafted a patent agreement, with the relevant research institution, helped MSF to communicate this with this research partner, in legal terms, and to think, and this is the important bit, outside the box, to find solutions to legal problems. The proficiency and hard work of the Lawyers has helped MSF to secure unlead – unrestricted legal rights to new developments and diagnostics. This means that many more people in poorer countries have that – have had access to these better techniques, improving the treatment and reducing the incidence of disease worldwide.

And my final example is, in respect to universal health coverage. Arguably, one of the most important challenges, I think, in public health, and indeed, for the sustainable goals agenda, in general, is to achieve universal health coverage by 2030. Our development partner, the International Alliance of Patients’ Organizations is a charity, which operates as an alliance of patient groups, championing the rights and representing the interests of patients worldwide, with a focus on low and middle income countries. Now, the International Alliance of Patients’ Organizations was seeking to develop capacity amongst patient advocates in the community to pursue a strategic approach of applying a legal and human rights based approach to health advocacy.

Now, this will ensure, I should say, that Target 3.8 of the SDGs, which is universal health coverage, is fully implemented and done so in a timely manner and in accordance with international standards. Dechert, one of our law firm partners, undertook what was a very comprehensive analysis of the right to health for the International Alliance of Patients’ Organizations, using Kenya as the case study, and they gave a legal opinion on the rights of right holders and the corresponding duties of duty bearers. At the International Alliance of Patients’ Organization’s African regional meeting in Entebbe, Dechert also provided training on a structured advocacy approach, to raise awareness of universal health coverage and to examine what a good patient advocate needs to do, in terms of legal research, advocacy, negotiation and, indeed, as a last resort, litigation.

So, I’ve given you some examples and a very few examples of a number that we have, which highlight the key role that the law and Lawyers can play in achieving the right to health and wellbeing.

Richard Horton

Give her a round of applause. Well done [applause]. Thank you very much indeed, Yasmin. Jenny?

Baroness Tonge

Oh, it’s me next?

Richard Horton

Let’s go. Come on, let’s go down the road. Yeah, absolutely.

Baroness Tonge

Yeah, okay, alright.

Richard Horton

Let’s break the rules.

Baroness Tonge

Well, I must say, I did a double take when I was told by the Advisor to our group that I’d been invited here, because I thought oh, crikey, that’s not my sort of place, at all, and the law and health and I’ve never really given it that much thought, I have to say. But when I did give it some thought, from the time of the Garden of Eden, I’m talking about women’s health in particular, because that’s my specialty, but you think of the Garden of Eden, or if you’re more of the Richard Dawkins variety, you know, when the first protoplasmic simple organisms suddenly decided that sex was more fun than just dividing asexually, at that point women were given uteruses, or given the means to have babies and we became incubators, yeah? That was our role and I thought, but, actually, the law has helped us quite a lot in this, because we would still be incubators. I would not be here now. I would’ve had perhaps ten/15 kids before I died and not done much else with my life. So, the law has helped tremendously and we now know internationally, that the development, we’re talking about Sustainable Development Goals, development of a country depends on relieving women of so much childbearing. And I’ll read out what I put here, it’s now recognised by the World Health Organization, the World Bank, all sorts of organisations, that women freed from early marriage and endless childbearing and ill health, not only access better education for themselves and their children, but they can contribute to the family income and the economy of their country, which makes governments, especially male dominated governments, very happy indeed.

And I promise you, you can see the graphs. If you knew a guy called Professor Hans Gosling, I’m sure you know Hans Gosling, with these wonderful bubblegrams.

Richard Horton

Rosling, yeah.

Baroness Tonge

Rosling. Wonderful bubblegrams, show how you start – you introduce voluntary family planning, simple family planning, into a country and after a while, the economy starts going up and up and up and up. Population comes down, family size comes down. I’ve just come from Bangladesh, where just that has happened.

So, it’s the law that has helped us in this. Laws against child marriage, I’m involved with those in Parliament and my remarks are really about what’s going on in Parliament and what has gone in in Parliament, because you need to know. You mustn’t – there’s a lot of young people here and you need to know. You mustn’t take these things for granted. Child marriage, you know people can get married at 16 in this country and the international convention is 18, but it’s 16 in this country. We’re battling that at the moment, ‘cause we feel a bit embarrassed. Compulsory sex and relationship education was first mentioned in Parliament when I first went into the House of Commons in 97 and this year, it is finally being put on the books and schools are expected to give that education. It’s over 20 years to get these sort of things through.

Laws against FGM have been on the statute books since 1983, I think, Lady Hale will correct me if I’m wrong, but we’ve not had – we’ve had one prosecution, I think. All of these things are coming from the law and they’re all helping women’s health, helping women. Good obstetric care and a proper health service and universal obstetric care, of course, is terribly important.

Now, if we look worldwide, maternal mortality rate at the moment is 342 per 100,000 women, was, rather, in 2000. It’s come down, the good news is that it’s come down by 40%. In 2017, it’s come down to 211 women per 100,000 maternal mortality rate. But if you look at deaths from illegal and unsafe abortion in Africa, there are still between 20 and 45,000 women every year die from unsafe abortion. And the interesting thing about that is that abortion rates, in particularly developing countries, are the same, whether you have a law permitting abortion or not. Because the only difference is, women will always get abortions, whether it’s legal or not. If they don’t want to be pregnant, they will do something to get rid of that pregnancy. But the difference is, of course, is the maternal deaths and countries with a high maternal death rate are often contributed hugely to by unsafe abortion and that is something, in the Millennium Development Goals, that we’re desperately trying to tackle and bring down. I can remember, I qualified in 1964, I’m quite an old lady, and I can remember gynae wards full of people who were very, very ill and some died from unsafe abortions. I remember it vividly, because the Abortion Act didn’t come in until 1967, of course.

And I just want to run through, very quickly, the sort of stages in the Abortion Act, because again, I don’t want people to think that it’s always been there and this is a simple thing and it doesn’t matter, you know, and you can always get an abortion. David Steel, it was a private members bill, the government never comes up with bills like this, much too controversial, David Steel’s Abortion Act in 1967, in fact, was to amend, can you believe it, the 1861 Offences against the Person Act, 1861. And that said that anyone procuring an abortion or helping someone to procure an abortion by all sorts of any means could get penal servitude for life, in the most extreme cases. That was the law at the time and abortion was not permitted in this country until 1967. David Steel came in and got through this Act of Parliament, which said abortion was permitted if two Doctors gave permission, two Doctors, and it’s still two Doctors. At the time, it was up to 28 weeks. It’s been brought down, subsequently, to 24 weeks, for obvious reasons. It has to be in an approved setting and Doctors could conscientiously object.

That’s one of the things I think the medical profession ought to do something about, because, actually, if a Doctor has a conscientious objection to something like abortion, then they shouldn’t do obstetrics and gynaecology. I mean, it’s just illogical to me, it’s a nonsense. There are plenty of specialties that they can go into that doesn’t involve it.

Richard Horton

Jenny, excuse me.

Baroness Tonge

Have I done six minutes?

Richard Horton

Seven, actually.

Baroness Tonge

Oh.

Richard Horton

Seven, seven.

Baroness Tonge

Well, I haven’t nearly finished.

Richard Horton

They’ve been a fantastic seven minutes, but I’m very…

Baroness Tonge

I haven’t nearly finished. I haven’t nearly finished. But I just wanted to tell you that these things – this is under attack the whole of the time and this is what I feel so passionate about, that every year, most – almost every six months in Parliament, some cove comes up with a private members bill or an amendment to something, seeking to amend the Abortion Act and make abortion more difficult. We’ve had successes recently, and a lot of my speech was going to be what Baroness Hale has said.

Richard Horton

Okay, okay, okay.

Baroness Tonge

But that is what I want you to feel passionate about.

Richard Horton

Jenny, fantastic. Please, yes, wonderful [applause]. Wonderful, wonderful, wonderful [applause], thank you. We are suitably passionate. Sharifah?

Dr Sharifah Sekalala

Okay, so, I’m going to focus, largely, on developing countries, because my research is primarily on global health law, within the context of the developing world. I’m going to start with a story from Uganda, where I’m from, that arose in 2009. So, in 2009, a lady called Sylvia Naluwuwa went to a medical centre, in order to have a baby. So, the Midwife gave birth to one baby successfully and then she realised that Sylvia was having twins. So, Sylvia was then sent to a referral hospital, so to the District Referral Hospital, in order to have this baby and when she got there she was asked for something called a Mamma Kit. So, a Mamma Kit is a really basic piece of kit. It has a plastic sheet, razorblades, cotton wool, soap, gloves and something to cut the umbilical cord, so really basic kit and she had already used the one kit and she didn’t have a second one. So, the Doctors – the Nurses then asked her for some money to buy the second kit, but before she could raise the money, she got into distress and both Sylvia and her unborn child died. So, the second child died. So, this was really tragic.

And an organisation, which is an activist organisation in Uganda, called the Centre for Health, Human Rights and Development, took the Government of Uganda to court, arguing that this was against – both against the Constitution of Uganda, but also all the international treaties that Uganda had signed at that time, and it was a really pivotal moment. The constitutional courts declined to deal with the issue, arguing that, actually, it could not set priorities, but the Supreme Court then overturned and said, actually, “This woman was owed her right to life. Her unborn child had a right to life as well, and there was no, kind of, set determinants of what the state could and couldn’t do that meant that children should die and mothers should die in childbirth.” So, for me, this case was really important, in thinking about the role of the law, in order not to create just remedies for individuals, but to create structure changes, because one of the things that happened, after this case, was the Government of Uganda was then forced to provide this Mamma Kit so that mothers did not have to. And that then, was something that was just, it’s not just for an individual, but a community as well, which is really, really important.

The second case that – the second thing that this case illustrated for me was the role of data and scientific evidence, which is something that this Commission came up with, as one of its recommendations, in order to, kind of, help the law to make the changes that you so desperately need. So, one of the things that came up in this case was that Sylvia’s case was not an anomaly, was that, actually, at the time, 16 women died in Uganda every day in 2009, during what was called routine childbirth, really propping up what Richard said, that many people die, due to poor quality services, as opposed to access. And that was really important and in order to make the Judges realise that, actually, comparatively, this did not have to happen. There were people who were just – there were countries that were just as poor as Uganda where this did not happen and something had to change.

Sadly, the case for me, really illustrated the role of civil society and I was really pleased to hear from the first panellist, who talked about the really – the role of civil society in helping us to, kind of, push for these structure changes. And, of course, in global health we know that civil society hasn’t been important just for gender, but has been important in areas of creating, kind of, global movements for access to antiretroviral medicines, for helping groups that have been criminalised, for helping in mental health, and so, this is really important. But one of the things that I then reflected on was this idea of law in some ways being a double edged sword. So, in the work that I am doing at the moment, which is looking at non-communicable diseases, I’m looking at litigation against public health and this is in cases of tobacco, within the developing country context. And so, we see that these cases that were successful in the UK, in Australia, that big tobacco has now moved its tactics to developing countries and this should really concern us. And I’m looking at cases in Uganda, Kenya and South Africa, where Philip Morris and British American Tobacco alleged that by introducing plain packet legislation, in line with the Framework Convention on Tobacco, these three countries are acting unconstitutionally. And this has led me to make three final observations.

So, firstly, there is this clear evidence of a litigation shift as big tobacco, kind of, loses its market within the developing world, into developing countries that bear the burden of this – of non-communicable diseases. And this should really make us reflect, both as health professionals, but also as Lawyers, about, kind of, where this fight will take place.

The second thing that’s really struck me is, this increasing mood by corporations to appropriate individual rights within constitutional processes, without any attempt to bear any responsibility. So, you have corporations that want to say we have a right to speech, a right to property, without, within this context, assuming any responsibilities at all. This, for me, is particularly startling, within developing country context. So, when you look at South Africa, you have strong constitutional rights after Apartheid, in Uganda after a civil war, in Kenya after ethnic violence. So, these rights were meant for people and have been appropriated by corporations and that, I think, should really make us reflect on what we want our constitutional rights to do for us.

And finally, I think that there is this danger of a regulatory chill for the things that, actually, never even make it into legislation, because countries become so afraid of this process that takes so long, that’s so expensive, that’s so time consuming, in areas where they really have other priorities. And this is important, and not just for tobacco, but really for the new frontier. So, Richard has stopped about obesity, so for sugar and alcohol, for other societal impacts, in terms of environmental degradation. So, this, really, should really make us think about where the future for research, for all of you who are involved in research, to make these developing countries much more resilient, so that they can enable these countries to build stronger national and international institutions that help us to create these accountabilities, both at the national and the international level. Thank you.

Richard Horton

Thank you, wonderful [applause]. Now, in the interests of your health, I have stolen ten minutes or so from the reception time that you were going to have, so you won’t – you’ll have less time to consume alcohol, sugar sweetened beverages and probably extremely unhealthy food. So, we will have time for questions and answers, but I’m going to ask Larry to speak next and then Rob, but try and keep your remarks, if you can…

Lawrence O. Gostin

I will.

Richard Horton

…to five minutes.

Lawrence O. Gostin

I will. Rob – Richard, thank you so much and you’ve introduced all of us, but Richard Horton isn’t just the Editor-in-Chief of the world’s greatest medical journal, he – more than journal. He is a – the global health leader. I can say that for those of you who are in global health, no-one will dispute it. For me, he’s my global health hero, so thank you for all you do, Richard, really [applause].

Richard Horton

No, okay, okay, okay, okay, we’ve still got to get some questions.

Lawrence O. Gostin

Okay, fine. Do I get an extra minute? No, okay, so, I’ve talked – in my introductory remarks, I talked about what law is, the rule of law, justice accountability, but I left off the legal tools, so, I’m going to very quickly run through, I have six major legal tools for health: tax and spend, health communication, built environment, direct regulation, indirect regulation and deregulation.

So – and I’ll give a couple of examples for each. Tax and spend is probably – we can change behaviour more through the tax system than through anything else, and we’ve done it with tobacco. Baroness Hale talked about minimal pricing in Scotland and I happen to be a big fan of Scotland’s work there. We do it now and we’re starting to do it with sugary beverages, to tax those, and there are many other areas where we can use the tax code effectively and we can also spend in areas that don’t subsidise sucrose, but subsidise fruits and vegetables.

In terms of health communication, again, Baroness Hale talked about the plain packaging case, how we prevent wrongful marketing. You can think, also, not only of tobacco, but of marketing unhealthy foods to children and children’s programmes, and a whole range of other areas where law should regulate these kinds of things. We even see it now in the vaccine world, where you’ve got false information about vaccines. But you can actually tell a mother that – you know, what is healthy and what is not healthy, but if she lives in a community where tobacco and alcohol and drugs are the norm, where she can’t send her child out to play, because it’s – there’s gun violence or there are no playgrounds and pitches, she can’t do anything. And then, for me, the built environment is everything. You can go to certain places, go to Sydney Harbour on a Sunday and everybody’s looking at you, looking at me, we’re walking and you can go to places that are really, really, horrible and so, the built environment is important.

Most people think of the law as direct regulation, but I’ve only put it as fourth. So, we can directly regulate road safety, which we do, licences, seatbelts, airbags. We can regulate occupational health and safety, particularly very hazardous professions, like coalmining and others. And also, we can – we’re not doing it very much, but we should consider how we regulate the formulation of food with added salt, saturated fats and other things in our foods.

Indirect regulation, we can use the tort system. I think you’re going to talk about a particular class action, in one context, but one can, of course, look at tobacco on the class action against the tobacco industry. It wasn’t just the money, but it was the tobacco papers that had made us unveil the kinds of deceit and – that was going on for decades and I suspect we could do that with alcohol industry, with the food industry, and many others. And then there’s deregulation. Sharifah talked about the fact that, you know, some laws are not good. HIV criminalisation, restriction on women’s health and reproductive rights, gay and transgender criminalisation, and a whole range of other areas, bans on abortion that we’ve been talking about.

So, those are six tools and then I’ll just end by saying that The Lancet Commission report that you’ve – we’ve been discussing, really highlights the role of law in universal health coverage. We’ve recently, as John mentioned, launched a project with WHO, UNDP and others, on UHC legal solutions. So, we can craft universal health coverage through laws that are – that create affordability, universal access, equity and quality, at a reasonable cost. Thank you very much.

Richard Horton

Thank you for that [applause]. Rob?

Rob Yates

Thanks, Richard, and after that very kind billing, you’re not going to be surprised to hear that I’m going to be talking about universal health coverage.

Richard Horton

No.

Rob Yates

And which, about a month ago at the United Nations, all countries in the world signed a political declaration on universal health coverage, including, surprisingly, the United States. And so, everyone signed up to this now and it – and you – one can very much see that this issue, this theme, is driving the entire global health agenda at the moment. So, one might think, you know, universal health, well, the most dominant discipline in achieving that is going to be medicine, it’s going to be science, it’s going to be the political sciences. But I think if you look behind the definition of UHC, you’ll see that there’s going to be as great a role, if not more of a role, I think, for economics, for politics, the law, environmental science as well and that’s really because of this definition, that universal health coverage is, “Everybody getting the health services they need, with financial protection.” And you see, that’s really all about rights and equity, that everyone on the planet should have this. So, this is where these issues around migration and refugees come in and, you know, which is highly relevant to the UK today and, you know, NHS upfront charges are against the principles of universal health coverage. You also see that it’s about people getting the health services they need, that some people objectively need more healthcare than others. And we’re not just talking about curative services, we’re talking about the full range of promotion, prevention, curative services, but right through to palliative care as well, which is another area that often gets neglected, in terms of the right of people to a decent death.

Then there’s also the extremely important issue of the financial protection. If you’re going to have this so that no-one suffers any financial hardship, then logically, it’s absolutely the case that healthy, wealthy people need to cross-subsidise the sick and the poor. And you follow that logic through, you have to publically finance your health system, and one of the big speeches made at the UN three weeks ago was by Gro Brundtland, who said, “The world has learnt that we are only going to reach UHC through public financing.” Now, that therefore means a huge role for the state, in determining who gets what, who pays what, what groups are covered next. And the way that’s achieved is through good laws and those laws being enforced and people being held accountable and avoiding situations of – there’s an example I want to, sort of, very briefly mention, where people are being locked up in hospitals because they can’t pay their hospital bills. We have these reports around the room, hundreds of thousands of people, each year locked up because they can’t pay their medical bills, in effect, being held hostage because of an unfair privately financed health system. So, any budding Lawyers in the room wanting to, sort of, get involved in something, I would suggest that that’s one thing to consider.

So, really, it is all about enforcing laws and making sure that we achieve universal health coverage and therefore, in the work that we’re doing at Chatham House now, I’m actually delighted that we are going to work much more on things around the legal determinants of health and we’re very keen to join this Legal Solutions Network. And I feel that we also need similar networks around the politics of universal health coverage and the economics. So, this is why we see the law and legal means as absolutely crucial to universal health coverage.

Richard Horton

Well done [applause]. Okay, now it’s over to you. I know that some of you will have to leave and I fully understand that, but we have microphones, so, please put your hands up and we’re going to take two or three questions at a time. So, this gentleman at the front and then I’m going to – I’m going for gender equity here, so, Emma. So, please, this gentleman, then Emma.

John Wilson

John Wil…

Richard Horton

Just say who you are and where you’re from.

John Wilson

Yes, John Wilson, I’m a Member of this institute and a Journalist.

Richard Horton

Very good.

John Wilson

You talk with a premise about universal law, but I suggest to you that there is no such thing, as a nation interprets law, according to their power. With the rise of China, where the state is the law, we are seeing a different interpretation of law in their image, from western law, as we know it. All the laws for good, which you create and interpret, will be as nought in the face of a rising world power with different values. Would you discuss?

Richard Horton

Excellent, thank you very much, indeed. Emma. Emma, no, right in front.

Emma Ross

Hi, I’m Emma Ross from Chatham House, Centre on Global Health Security. Oh, I have two, I have to pick one, and I was going to ask about…

Richard Horton

You’ve got two?

Emma Ross

…vaccination, yeah.

Richard Horton

Yeah, go on.

Emma Ross

Has – well, okay, first question is, has the law been brought to bear on mandatory vaccination? If it hasn’t, why has that not been done yet, what’s stopping it? And my second question is, which health issue, if you had to pick one, is most deserving of legal intervention now, which one should go first, next?

Richard Horton

Okay, we’re going to go to the back gentleman, who’s just been – who has been putting his hand up, on the left, my left, yeah. Come forward, say who you are and where you’re from, please.

Jose Raquino

Good evening, my name is Jose Raquino. I’m a Nurse from the NHS. I practise in the Middle East and here, as well as in New Zealand and America. My first – my only question is, you guys mentioned about taxation, and very particularly about the challenge of provision of healthcare and medical services and since you’ve mentioned it, there’s – we need money involved in provision of those services. They – I visited the Channel Islands and Panama. I’m wondering, how are we doing with chasing those people who are tax evading, you know, how are we doing that work, since the enlightenment of the Panama papers?

Richard Horton

Fantastic, that’s good, thank you. So, Larry, this is nonsense, there can be no such thing as universal law. What are we talking about law in this rather global way for? It’s the Thomas Nagel point.

Lawrence O. Gostin

Yeah, I mean, the – you know, there are authoritarian governments that create their own law. China would be one example of that and that is not what we mean in The Lancet Commission by the rule of law. The rule of law is created in a constitutional process, in a fair and transparent way. It is one that is then applicable to everyone, and from the high and mighty, to others and to government. And so, we believe that you really cannot have a state of good health, unless you live in a place that has the rule of law, where there is accountability, where there is monitoring and there is civil society engagement and social mobilisation for the right to health.

Richard Horton

Okay and that’s a great answer, thank you very much. Any other panel member wants to comment upon this very difficult issue? No, okay, that’s good. Let’s turn to mandatory vaccination, why haven’t we gone for mandatory vaccination, from a legal perspective? I’m going to turn to Jenny.

Baroness Tonge

Well, it’s been brought up several times, actually, in the House of Lords and in the House of Commons recently, because of the worry about herd immunity, really. It’s not just the individual child, it’s the fact that herd immunity is being lost, so vulnerable children, who can’t be vaccinated for medical reasons, are then put at risk of catching particular diseases, because other children haven’t been vaccinated. The government, at the moment, their line is that we do not want to enforce vaccination. I mean, the idea is – I think in Australia, you can’t send your child to school, unless they’ve had all the vaccinations. Is that right?

Richard Horton

What’s your view, Jenny?

Baroness Tonge

So, sorry?

Richard Horton

What’s your view?

Baroness Tonge

I think it should be – I think there should be a law. I think if you want to send your child to school or nursery with other children, then it is your responsibility to make sure that you child doesn’t endanger other children.

Richard Horton

Okay, Sharifah?

Baroness Tonge

It should be compulsory.

Richard Horton

Sharifah?

Dr Sharifah Sekalala

So, there are lots of places in Africa where there’s mandatory vaccination, but I think that we have to also think about the cultural. So, this is not something that happens just within the legal sphere, and it’s really important for us to think about, kind of, as Sociolegal Lawyers, what difference we can make to the social, in order to make people comply.

Richard Horton

Oh, Larry?

Lawrence O. Gostin

And Richard, you probably want me to say that on November 5th we have an article on this in The Lancet Infectious Diseases…

Richard Horton

Wow, that’s really great.

Lawrence O. Gostin

…and that cov…

Richard Horton

Very good.

Lawrence O. Gostin

That goes through all around the world and looks at various forms of legal intervention to improve vaccination rates.

Richard Horton

Yeah, now, this is interesting. This is where you have a clash between maybe the public health community and this panel, for example, because many, in public health, are worried that a mandatory approach might actually turn more parents away from vaccinations, so, there’s a very vexed issue. Let me – who’s the next person on tax evasion? Oh, Rob, come on, what’s the solution?

Rob Yates

Well, I think what we’ve learnt is that, you know, that health financing, over the years, has deemed to be, sort of, very controversial, but now there is a consensus. And it’s just like the chap said at Davos last year, that wonderful Dutch Historian, you know, “Tax, tax, tax, the rest is bullshit,” basically. It’s all about tax and it’s the only way to finance your health system. You know, user fees are, in effect, a tax on the poor and the sick, so you definitely don’t want to go there. Private voluntary insurance is useless. You have to tax finance your system and therefore, to allow huge swathes of – big parts of the economy to escape its – not paying its taxes, is terrible. So, these are exactly the types of things we have to get into about taxing natural resources properly.

Richard Horton

But Rob, what about countries, which don’t have the kind of formal economy that can sustain that kind of taxation?

Rob Yates

Well, there, you’re looking at not just using income taxes, but, sort of, natural resources. I mean, one thinks of Nigeria with a GDP per capita of $2,000 now, which was higher than Thailand’s was when it launched UHC. So, objectively, you say Nigeria should be using its oil revenue, so, like Norway has done. So, there are lots and lots of different ways to tax, but then, poor countries, with weak economies, are going to need aid financing, which is a form of taxation.

Baroness Tonge

That means international aid.

Rob Yates

Which is, yeah…

Baroness Tonge

So, that’s from international.

Rob Yates

…international aid, which is a form of tax.

Baroness Tonge

Yeah, which is taxation for us, so that other people can…

Richard Horton

Okay, now, I want to hear from each of you, which health issue, this is Emma’s second question, which health issue do you want to priorit – would you prioritise, from a legal determinants of health question, in other words, where a legal tool could make the most difference in health, I think is Emma’s point? Emma’s nodding. So, I’m going to start with Yasmin, I want your priority, one priority, as we go down the panel.

Yasmin Batliwala

Okay, so, the way I’m going to answer your question is to say that this – last week the Health and Social Care Committee called for – and this is a Select Committee of the government, in its paper on drugs policy, said that, or encouraged, very strongly encouraged the government to consult on the decriminalisation for personal use of cannabis, from a criminal offence to a civil matter. Now, that will have huge repercussions, but it might bring this country into the 21st Century.

Richard Horton

Thank you very much, indeed. Jenny?

Baroness Tonge

I’m not sure how to answer this question, but one of the other bees that I have in my bonnet is people are always talking about rights and health rights and people have rights, and we never talk about people’s obligations, either. And I think it’s very important that people should know, in a way, in a society like ours, they have an obligation to keep themselves as healthy as possible. I mean, you get the dilemma of a Surgeon refusing to operate on a 25 stone woman, because it would be dangerous to do so and telling her to go away and lose weight, and she says that, “It’s my right to have that operation.” You know, that I think sometimes, we talk too much about rights and not enough about obligation, too.

Richard Horton

Sharifah?

Dr Sharifah Sekalala

Big corporations and legal obligations that they owe towards the world.

Richard Horton

Well that’s well said. Larry.

Lawrence O. Gostin

I love that and I should’ve thought of that one. I was going to say the built environment in smart cities, so that fruits and vegetables are accessible and affordable in all communities and there’s parks, there’s playgrounds, there’s public transport. That’s the kind of city I want to live in.

Richard Horton

Fabulous. Rob.

Rob Yates

I’m not saying it’s the biggest impact, but the quickest win, banning medical detentions and so, you know, after this report a Journalist went to Congo and found 19 out of 20 hospitals, she visited in Lubumbashi, had people locked up and she was horrified, took it to the donors and said, “Are you aware this is going on?” And found that the Global Fund has an agreement with the Government of Congo, saying that “Medical detentions should only be used as a last resort.” So, I mean, I feel that, personally, the global health community is just massively letting down, and they’re mostly women and babies, who have had caesareans. So, quick win, get rid of…

Richard Horton

Okay, brilliant. Who’s got – I want one or two final questions that are absolutely brilliant expositions to hold this panel accountable. You’ve been so patient. I’m going to take…

Member

Take mine.

Richard Horton

Yours is brilliant, yours is brilliant. Yes, please. Wait, wait, wait, microphone. Who are you and where are you from?

William Heathcote

I’m William Heathcote, a student and Chatham House Member, and I thought I’d ask you guys about the impact of e-cigarettes and how they’re very accepted and seen as very helpful in Britain and successful, whereas in America, it seems it’s almost a lot of anti, sort of, vaping commercials being run and almost against that standard.

Richard Horton

Okay, brilliant. One more, one more, one more, and I’m looking, actually for perfect gender equity, so, I’m going to go for you, please. Sorry to everybody else.

Trisha de Borchgrave

Sorry, it was the gender thing, I’m sorry. Trisha de Borchgrave, I’m a Freelance Writer. I wanted to ask Larry, there was a lot of pushback with Trump’s travel ban, the Muslim travel ban, a lot of legal challenges in redress. Has there been the same sort of legal challenges with his global gag rule?

Richard Horton

Okay, very good. E-cigarettes, who?

John Monahan

I mean, it should be you, but I have my own pet peeve about it, but you know more about it than I do. I…

Richard Horton

No, you don’t want to know my views regarding it.

John Monahan

I mean, I’ve tweeted about this. I mean, Public Health England came out with this thing about, you know, that it’s, you know, it’s almost all adults, including…

Richard Horton

Anybody from Public Health England in the room? Oh, Annie, no, okay.

John Monahan

Really, have you ever…?

Richard Horton

You’re not going to get out alive, you know that, don’t you?

John Monahan

Right, have you ever walked down the streets of London and see how many people are vaping, how many vape shops, flavours and all sorts? Give me a break.

Richard Horton

Okay, anybody else on that?

Sharifa Sekalala

And I think that’s what really curious about vaping shops is where they are. So, look at really deprived areas in the UK and you’re going to see lots of vaping shops and that should tell us something.

John Monahan

I mean, you’re hearing.

Richard Horton

And look who owns these e-cigarette companies. But it’s not the job of the moderator to comment. Okay.

Yasmin Batliwala

Could I just say one thing?

Richard Horton

Yes.

Baroness Tonge

they’ve always been asked.

Yasmin Batliwala

In addition to that, if you look at the way this is being advertised, using celebrities, which are appealing to…

Richard Horton

Children, young people.

Yasmin Batliwala

…younger than 18-year-olds, which is, obviously, asking for trouble, in the longer-term.

Richard Horton

Trump’s travel ban?

Lawrence O. Gostin

The global gag rule. The Supreme Court, in the United States, struck down one under President Bush, because it affected US NGOs. But, under our legal system, which I don’t totally agree with and Baroness Hale might comment, you cannot bring a court case on behalf of a foreign NGO. That’s because they don’t have First Amendment rights the way US NGOs do. So, so far, there isn’t any success, but there – you’re right, it’s a horrible, almost crime, against humanity.

Lady Hale of Richmond

And it’s causing many, many more maternal deaths.

Lawrence O. Gostin

Yeah.

Richard Horton

Yes, absolutely. Okay, please give a big warm thank you to this panel [applause]. And to reiterate, our commitment is to create a standing commission that will continue in perpetuity to look at these questions, and I now hand over, finally, to say goodbye and goodnight from Rob.

Rob Yates

Right. Well, thank you very much, indeed, everyone, for coming today, and this has really been our first event of what I’d say is our Centre for Universal Health. And for me, it’s really interesting, I think this is the biggest audience we’ve had for a global health event like this, which really makes me think we should get out more and engage more with other professions. And so, we are going to be having more events like this, very much, as I say, looking at the politics, economics, environmental aspects of health and for us health people to, sort of, get out there and mix with other sectors, as well. So, please look out for the website. Please do come to events like this and please do support us. Thank you [applause].