Interview with: Michael Oghia (Global Forum for Media Development)
Host: Kira Allmann
Producer/Editor: Kira Allmann
Executive Producer: Kira Allmann
Music: Rosemary Allmann

TRANSCRIPT (PDF)

Kira Allmann (00:12): Welcome to RightsUp. I’m Kira Allmann. In this episode I’m talking to Michael Oghia, a global consultant on Internet governance, about the environmental impact of the Internet.

Here in the UK we are just emerging from months of a national lockdown to try to quell the spread of the coronavirus. As other episodes in our Covid-19 series have addressed, these conditions of immobility and containment have forced huge portions of our lives online, from education to work, with important human rights ramifications. But there’s an argument to be made that the Covid-19 lockdown has been good for the environment. Since many of us haven’t been spending much time outdoors or travelling long distances, there have been reports of lower levels of littering and urban pollution. As humans withdrew from public spaces, some native wildlife has reemerged. Basically, there are signs that lockdown and our decreased mobility has been a real win for nature. But our newly intensified online routines, from video conferencing to binge-watching Netflix, might have more of a negative environmental impact than we realise. According to a March report by the BBC on why our Internet habits might not be as clean as we think, the Internet and the systems that support it are responsible for 3.7% of global greenhouse gas emissions.[1] That’s roughly the same as the airline industry. It’s estimated that the typical professional creates 135 kilogrammes of CO2 just sending emails — which is equivalent to driving 200 miles in a family car. And watching online videos, which accounts for most of the world’s Internet traffic, produces 300 million tonnes of CO2 a year — about 1% of global emissions.

And we know that climate change and human rights are closely linked. The Office of the High Commissioner for Human Rights says that “[c]limate change threatens the effective enjoyment of a range of human rights including those to life, water and sanitation, food, health, housing, self-determination, culture and development”.[2] The relationship works the other way around too. Many environmentally harmful practices are also contingent on human rights abuses, such as exploitative working conditions and manufacturing processes for consumer goods.

The thing is, we don’t often think about where the Internet fits into this complex relationship between humans and the natural environment. And that’s why I’m here to speak with Michael Oghia, who’s a Belgrade-based consultant, researcher and editor, working within the Internet governance and media development ecosystems. He is the Advocacy and Engagement Manager for the Global Forum for Media Development and his work specifically focuses on access, capacity building, digital rights, infrastructure and sustainability. He is also currently serving on the Steering Committee of the Internet Rights and Principles Coalition, the IRPC.[3] So, thank you so much, Michael, for joining me to talk about the Internet and climate change.

So I’ll just get right into the questions. I think that when a lot of people think about the Internet and its relationship to the environment, they probably think mostly about how the coming of the “digital age” brought the potential to reduce our environmental impact in some key ways. For instance, going paperless and reducing the need to travel. And now, during this global coronavirus pandemic, we have turned to the Internet to facilitate interactions that used to occur in person and burn many airmiles. So, maybe we’re seeing that potential playing out now. But when you talk about the environmental impact of the Internet, you’re viewing it in a different way, right? So what are you referring to there, Michael?

Michael Oghia (04:13): Well, that’s great, Kira, because here’s the thing. Indeed, you know, by not cutting down trees because we want to save paper, that is a great endeavour and that’s something that I’m not necessarily advocating against. But what we don’t take into account is that everything that we do in the 21st century, and just basically at any time, it requires energy, and so to cut down trees and then to turn that— and to convert that into paper, that takes energy. But also going to a search engine and searching for whatever you want, that takes energy. Manufacturing a smartphone, takes energy, it takes minerals, it— from, you know, from the ground to create those devices. So even though we don’t see past the clicks or we don’t see past the devices, there is an entire infrastructure behind the Internet that is essentially being powered by fossil fuels, by, oftentimes, conflict labour — especially when we consider the minerals that go into, let’s say, smartphones. And basically my entire point is that, of course there are positive implications, especially for development, when it comes to ICTs [Information and Communication Technologies]. But what I really hope to address are the massive policy gaps that fall under the wider umbrella of sustainability. And especially the one that I keep repeating often, often over and over, is that we cannot legitimately discuss Internet access without addressing sustainability.

Kira Allmann  (06:00): Let’s just unpack a bit more what you mean when you say that the Internet and associated technologies use energy. There are a lot of levels at which energy is a factor. For example, there’s data storage and transit, which requires infrastructure like cables and data centres. There’s also the production of electronic equipment. There’s the use of that equipment when I plug my phone into charge, for instance. So, can you talk a bit more about where, on these many levels, the energy consumption associated with the Internet is coming from?

Michael Oghia  (06:33): Absolutely, Kira, and like I said, whenever— All of the infrastructure behind the Internet, it’s powered, not just, you know— it takes energy and where does— where’s most of that energy being used? It’s being used in data centres. And oftentimes, especially, you know, when you make a request, let’s say to Google or something like that, depending on where you are, it sends that request to a data centre and then it’s sent … to a server that’s located in a data centre, and then that information is sent back to you. Well that takes energy. But then— And if you’re doing that for just one person, it’s not— that’s absolutely negligible. But if you’re doing that at a scale that we have now with the Internet, with all of the devices that exist, with all of the individuals that are connected to the Internet, that massive— that really adds up.

Already, global ICT electricity use is growing and it’s currently about 10% of global electricity use, which amounts to about 2 to 3% of all global greenhouse gas emissions. It’s not just about data centres, although there are a massive… they are very much a massive user of power, of sorry, of electricity. It’s also, as you said, it’s the electricity that our devices use, it’s the energy that’s used for transit, because it’s not just the servers at a data centre are being— you know, use energy to be powered, it’s also, energy is used to transmit data through the fibre optics, or through the copper cables, or wherever, between one point to another. That  takes electricity. And as we’ve seen, over and over, data usage is rising. So, I can definitely say that, although energy efficiency is rising — which is true — the amount of data being produced day after day, year after year, is also rising exponentially.

The relationship between energy and Internet is clear, yet well over 1 billion people still lack access to reliable energy, full stop. And only about half of the world’s people, in total, are connected to the Internet. So, I mean, whenever we’re thinking about bringing the next billion people online, what we’re not thinking about is, “Okay, so those  billion people, we want them to get connected to Facebook, we want them to be connected to Netflix, we want them to connect to their families via Skype, or we want them to connect to health services or mobile banking, that is going to end up using a lot of energy as well”, and that’s something that we are not currently factoring into — “we” being the people in the Internet ecosystem — are not really fully factoring into the design of networks going forward, we’re not factoring in that into, you know, how we build the infrastructure that’s powering the Internet.

One of my bigger points, in general, one of my bigger issues with this entire process, is that energy and sustainability should consistently be part of our conversations. We should not look back and address sustainability in retrospect, it should be integrated into the core of our work — “our” being anyone working within the Internet ecosystem — but also especially public policy. And it should be— and sustainability should be considered a basic requirement, whether that be at the manufacturing level, at the mining level (if that’s even possible), at the— or rather, not just mining but resource extraction, at the consumer level — there is definitely a consumer area here to address as well: sustainable production and sustainable consumption. And of course, something I haven’t even mentioned yet is how we address electronic waste, all of the— this linear production cycle and this linear consumption cycle that we have for, whether it be devices or fibre that we put into the ground, or the servers that we store our data on. You know, we sh[ould]— this should have much greater considerations for sustainability, because we all have a role to play in protecting the environment and, currently, we are really lacking in this, especially when it comes to ICT sustainability.

Kira Allmann (11:06): What about planned obsolescence? This is the idea that technologies we use to connect to the Internet, like our phones and laptops, are kind of programmed to have finite lifespans so that we buy more of them rather than patching them up and using old models. But if we’re constantly disposing of our old devices, that must have something to do with this issue, too, right?

Michael Oghia (11:27): So, gosh, Kira, you’re bringing up so many wonderful points here. So  there’s a couple of things that I want to bring in. One, is that, yes, you mentioned— I mentioned e-waste, you addressed it just now as well. One of the things about ICT sustainability that even a lot of people working in the Internet ecosystem, who do care about this, might overlook, is the relationship between sustainability and human rights. Now, why do I bring this up as it relates to e-waste? If, let’s— the thing about electronic waste is that a lot of the electronic waste that’s generated is not disposed of or recycled properly. I remember a UN report came out in 2017 that found that, something along the lines of … I think the figure, exact figure is 65 billion dollar’s worth of recyclable e-waste was lost in 2016.[4] And a lot of e-waste, and the reason why I bring rights into this, is because a lot of e-waste is then dumped, oftentimes in the Global South, in economies where the— what’s called— I think it’s the “grey areas” or “grey sectors” of the economy is where, you know, people are doing things that are obviously hazardous for their health, but it’s not necessarily illegal per se, but it’s definitely exploitative, and it often involves, for instance, child labour. We see this throughout Sub-Saharan Africa, we see this in India, where children are essentially pulling apart parts of phones and VCRs, and TVs and all these other devices that have been dumped, often from the Global North (the US, Canada, the EU, Russia), just being dumped in China, India, throughout Africa, and this is really creating massive problems, massive health problems, massive environmental issues.

And another issue that I mentioned before is conflict minerals. Throughout the Democratic Republic of Congo, for instance, there are so many mines that are being illegally operated by warring parties in their civil war, that are using forced labour in order to extract minerals that are then being used by companies to create all of these devices that we use. Now, a lot of the major companies, they say, “Well, we’re trying to monitor our supply chains” and, fair, they are working toward that, but they need to do more. And like I said, when you’re making billions of dollars a year, “Oops” is not a good enough answer. We are creating all these devices, but we’re not creating the infrastructure to adequately address how we  see it through its end of life.

Kira Allmann (14:24): It’s an interesting point you make about the human rights implications of this issue, and I do want to return to that, but first, I’d like to ask you about the rise in climate change activism in recent years. We’ve arguably seen more attention focused on climate change with movements like Extinction Rebellion. We think more about recycling and air travel and things like that, but Information and Communication Technologies aren’t usually on the radar. Why do you think this isn’t a bigger part of the discussion?

Michael Oghia (14:54): Well, I think  it’s not part of the conversation for a few reasons. One, is just simple ignorance. I think most people think, “Oh, you know, okay, I charge my phone every night, but, come on, how much energy is that using?” So, one, it’s a minimal— One is ignorance. Two is, I think, minimalisation of an individual’s own impact. But number three is also that a lot of the— a lot of the problems are coming at the resource extraction, production and the service provision levels. So it’s coming, not necessarily from a consumer level, which— I’m not to say that consumers should be off the hook, but, they absolutely should be responsible for what they buy, for what they consume — but there’s a lot happening, let’s say, outside of the public domain. Definitely. And I think in a lot of ways, policymakers are not… either not interested, or maybe they’re just not educated, about why this is important, why this is continuing to grow. Let’s not forget, Kira, that the Internet is such a new technology. I mean, this— although electronics have been around for decades, of course, I mean, the Internet as we know it has only really taken off in, let’s say, the 1990s, so it’s a relatively new problem. And, you know, like I said, most people don’t necessarily consider themselves to be contributing to it the way that, you know, let’s say an airplane is very obviously emitting carbon. And I think also, Kira, we’re dealing with so many issues at once. It’s like, the door is open and thousands of issues are all pouring out, you know, we— it’s— I think there’s a lot of fatigue in this, it’s like, “Oh, you know, don’t tell me another element of my life is also damaging for the Earth or for the environment”. But, that’s the thing about not seeing things as holistically as we should, is that, unfortunately, you know, these— everything’s connected.

Kira Allmann (16:51): You mentioned the connection between this issue and human rights earlier, and I want to go back to that. You talked about human rights issues that are implicated in the material reality of the Internet, things like conflict minerals and the processing of e-waste. But what about the debate around a human right to Internet access? There’s a growing recognition that Internet access is not a luxury, it’s a necessity, but what perspective should we take on a “right to connectivity” if we’re also taking on board these issues you’ve raised about sustainability?

Michael Oghia (17:22): Absolutely, and thank you for this, because— But, the way that I would start by addressing this is not just from the larger concept of “Does everyone have the right to connect?” or “Does everyone have the right to Internet access?” etc. It’s more that, “Okay, so here I am, I’m in a rural or remote area, and I’m not connected to the Internet. What— the better question to ask is — what steps do I need to take in order for me to be sustainably connected to the Internet and in a way that can actually mitigate some of these problems that we described?” And one of the best communities that I would say is— that— who is really at the forefront answering these questions are— is the com[munity]— are those individuals that are, and those organisations, that are working with what’s called “community networks”. Because community networks are really— are set up to be self-determined, to be bottom-up, really inclusive. And, a lot of times community networks are working in places where they don’t necessarily even have connection to an energy grid, which means in order to provide connectivity to, let’s say, a population that is not already connected to the Internet, they have to have— they actually have to set up energy for that community, you know, full stop.

So, I would say it’s really important to consider even, you know, even beyond the concept of “Does everyone have the right to be connected?” — because I do agree with that — but at the same time we have to consider, well, are those— is the issue of Internet access also fitting into larger development problems, which is, for instance, like I said, the lack of electricity, the lack of access to a sustainable market, or something like that? And the fact is, getting a very basic weather report on a very basic smartphone is very different qualitatively from watching ten hour[s] … or from binge-watching ten hours of high-definition content on Netflix.

Kira Allmann (19:36): It sounds like you’re saying that we can’t bring the next billion people online doing the same things that we’re all doing online. So equal access, at least the way access looks today, isn’t really sustainable access.

Michael Oghia (19:49): Yes, basi[cally], that is absolutely true. Now, I mean, that— and to be frank, that echoes much wider discussions, especially within the development community, about how— about, you know, sustainable development writ large. And so, unfortunately, if everybody consumed the way that individuals in developed countries, especially those in the Global North do, we simply don’t have enough Earth to, you know, provide for those kinds of resources that are needed. So, it does take self-reflection, it takes real impetus on the— you know, on both those who are already connected as well as those who are working to connect, to make sure that we can do that in a sustainable way. And whenever we talk about sustainability, not just “greenwash” what sustainability means, but really make sure that, from the moment that we are devising how to connect individuals or the technologies that we will need to use those, to even the skills that are needed and the languages — or the kind of content that is needed in local languages — to ensure that those individuals stay online, we have to think about that holistically because, otherwise, we are going to end up potentially with much bigger problems than what we already have.

Kira Allmann (21:11): Who else is out there working on these issues? Are there any shoutouts that you’d like to give to people or organisations, tackling these issues in meaningful ways?

Michael Oghia (21:19): One of the reasons why I say this is such a good discussion for the Internet governance community is because one of the defining aspects, or elements, of Internet governance is that it’s multi-stakeholder. And the only way we’re going to be able to address these massive issues is if we address it in a holistic and multi-stakeholder way. So who is it doing these things?

Well, first of all, one of the first groups that comes to mind is Greenpeace. Gary Cook over at Greenpeace [is] really doing such an incredible job at monitoring, especially platforms and companies’, usage of energy, where are they getting their energy from, they’re auditing them, they’re really doing great work.[5] Some friends of mine over at a group called ClimateAction.tech,[6] they are doing a lot of work, especially more in the software space, to see how they can cut down on emissions and make, you know, make the Internet more sustainable and more green. That is also— there’s also The Green Web Foundation,[7] which … was started by the same people. Chris Adams is a guy that I really want to highlight here, he’s doing incredible work throughout Europe and beyond to really make the Internet more sustainable. But those are just a few. The Internet Rights and Principles Coalition within the Internet Governance Forum[8] are doing a lot of work to prioritise these kinds of discussions, to make sure that ICT sustainability is on the agenda of Internet governance. Different companies, different Internet providers— Internet service providers are very much committed to sustainability. I mean, that includes Google, Etsy, Facebook even. So, you know, again, give credit where it’s due there. And, people like Mike Hazas from Lancaster University.[9] I mean, an entire group of people in the ICT sustainability and lifecycle assessment communities, they’re doing a lot of work to make— to see how ICTs can become more sustainable, what can we do to reduce the footprint, but I— my biggest fear is that we’re not moving fast enough, we’re not moving fast enough to make the Internet more sustainable as the Internet is growing, in terms of data use and users, full stop.

Kira Allmann (23:44): I feel like it can be a little overwhelming when our lives are so digitised now to wrap our heads around the changes we would have to make in our everyday lifestyles to be more sustainable. What would you say we can do in that regard?

Michael Oghia (23:58): Yeah, so, that’s a great question. And of course, I do understand— If anybody’s listening to this and thinking to themselves, “Oh my god, what am I doing? Or like, how—what can I do about this?” First of all, don’t feel guilty, don’t take it on yourself. It’s incumbent on ourselves to do as much as we can in our own personal lives, but recognise that individual action is not enough. So what do we do?

At the individual level, one of the simplest things that you can do is stop replacing your smartphone every year or every two years, especially now, they, you know, smartphones are made in such a way that they are very, very durable. They, you know, they are faster than they used to be and they don’t really need to be replaced so often, so…

Petition local authorities, or state authorities, or federal authorities, to support the right to repair. You know, oftentimes for instance you’ll hear that warranties will be voided if you try to fix your phone yourself. That is completely unethical. It’s— If you’ve bought this device, it is your’s to maintain as you wish, and so that’s one other thing you can do.

Number three is ensure that when you do have to dispose of electronics, please dispose of it responsibly. And oftentimes there is a municipal e-waste provi[der]…you know, recycler, in your city or in your state. So, there are things to do.

And I really, really challenge everyone: don’t just dig your— put your head in the sand about this and pretend like it’s not a problem because it’s only going to get worse over time, but we can really contribute to making it better. The challenges ahead of us are immense but what is really important is that we continue to prioritise these issues, that we really need to do more to educate people, to raise their awareness and to not just say, “simple fixes here and there are going to do it”. You know, there are little things that we can do, like switching to a more sustainable web provider, such as Greenhost, or switching to a more sustainable, let’s say, search engine. But then there are really things that we need to be doing, especially at the lobbying and advocacy stages, to make sure that Samsung is, you know, they’re getting their components from sustainable sources and from conflict-free sources, supporting groups like Fairphone[10] that are trying to create smartphones that are not just trying to overcome planned obsolescence. You know, Fairphone’s doing that to make their phones more modular and more sustainable over time. So, there are people out there that are working on it on so many different levels, but we really need more support. We need more support, especially at the policy level.

Kira Allmann (27:03): Thank you so much for joining me, Michael. This has been a great call to action and a provocation on an issue that we really don’t spend enough time thinking about.

Michael Oghia (27:11): And I appreciate everyone for taking part in this conversation and listening, and thank you so much as well, Kira, for having me on the show.

Kira Allmann (27:29): RightsUp is brought to you by the Oxford Human Rights Hub. This episode was produced, edited and hosted by me, Kira Allmann. Music for this series is by Rosemary Allmann. Show Notes for this episode have been written by Sarah Dobbie. Thanks to our production team members, Christy Callaway-Gale, Gauri Pillai, Mónica Arango Olaya and Natasha Holcroft-Emmess for their valuable feedback in putting this episode together. Subscribe to this podcast wherever you like to listen to your favourite podcasts.

[1] Sarah Griffiths. “Why your internet habits are not as clean as you think” BBC (6 March 2020), available at https://www.bbc.com/future/article/20200305-why-your-internet-habits-are-not-as-clean-as-you-think

[2] “OHCHR and climate change”, available at https://www.ohchr.org/EN/Issues/HRAndClimateChange/Pages/HRClimateChangeIndex.aspx.

[3] Internet Rights and Principles Coalition, available at https://internetrightsandprinciples.org

[4] International Telecommunication Union, “Global E-waste Monitor 2017”,  available at https://www.itu.int/en/ITU-D/Climate-Change/Pages/Global-E-waste-Monitor-2017.aspx

[5] “Gary Cook”, Greenpeace, available at https://www.greenpeace.org/usa/bios/gary-cook/

[6] ClimateAction.tech, available at https://climateaction.tech

[7] The Green Web Foundation, available at https://www.thegreenwebfoundation.org

[8]

[9] “Dr Mike Hazmas”, Lancaster University, available at http://www.research.lancs.ac.uk/portal/en/people/Mike-Hazas

[10] Fairphone, available at https://www.fairphone.com/en/

Interview with: Michael Ford, QC (University of Bristol & Old Square Chambers)
Hosted by: Natasha Holcroft-Emmess
Produced and edited by: Christy Callaway-Gale
Executive producer: Kira Allmann
Shownotes: Sarah Dobbie
Music: Rosemary Allmann

TRANSCRIPT (PDF)

UNITED KINGDOM: Workers’ Rights in the midst of COVID-19 (with Professor Michael Ford QC)

Natasha Holcroft-Emmess (0:11): Welcome to RightsUp RightNow, a podcast from the Oxford Human Rights Hub. I’m Natasha Holcroft-Emmess. Today I’m speaking with Professor Michael Ford QC, a barrister at Old Square Chambers and Professor of Law at the University of Bristol, who specialises in labour law, public law and human rights.

The spread of COVID-19 has affected many areas of our lives and brought with it onerous implications for our rights and freedoms. Governments around the world are adopting stringent measures in an attempt to tackle the public health emergency created by the virus. The instigation of a UK-wide lockdown entailed particularly heavy repercussions for our rights. It has affected our ability to lead our lives freely and, across many sectors, to work as we normally would, or at all. The impact of this disruption will fall most heavily on those whose livelihoods, health and security were already fragile. Furloughed employees, those who are self-employed, and those who must now seek social security benefits face an unprecedented level of uncertainty. Restrictive measures adopted by the Government must be sufficiently robust to tackle the challenges posed by the virus, while also supporting those whose livelihoods are now at risk. Today we will be discussing the impact of Coronavirus on workers’ rights in the UK. Professor Ford, thank you for joining us today.

Professor Ford (1:56): It’s a pleasure. Thank you for inviting me.

Natasha Holcroft-Emmess (1:58): Let’s begin by setting the scene for workers’ rights before the Coronavirus pandemic. How far had the UK come in securing protection for workers’ rights prior to the pandemic?

Professor Ford (2:10): Well, that’s a big question. The workers’ rights in the UK are principally now underpinned by EU law. There’s been a pretty long campaign from, principally, the Conservative governments, but also its predecessor Coalition governments, and even before that, New Labour, not to go beyond the minimum of EU protections. So we aren’t that great on domestic rights that aren’t underpinned by EU law. The most important ones are probably the unfair dismissal protection and the national minimum wage. Virtually everything else in UK law is dependent upon the EU and that includes, especially, discrimination law, duties of work consultation, and so on and so forth. Now all that, even despite Brexit— all that edifice is in place. But I think it’s fair to say UK law doesn’t provide much protection for those who are placed—on decisions to shed labour. In particular, the rights to redundancy payments in those circumstances are pretty low and are confined to those who are employees with two years’ service. There’s a possibility of claims for unfair dismissal, but the focus tends to be mostly on whether or not the employer acted “reasonably” in selecting for redundancy, when challenged, the actual decision to make redundancies in the first place. And there are provisions on collective consultation in the— owing their origin to EU law, but those too tend to be more focused on whether or not there was a process of consultation rather than whether or not the actual decisions to make people redundant were justified, and they only apply when certain minimum numbers are triggered. There are some ancient — I say “ancient”, they’re pretty old provisions — providing for payments in circumstances where people are put on “short time”[1] or no working, but they’re rarely referred to nowadays. So in summary, there’s not really much protection against the management decisions to get rid of workers because of the crisis. There are more protections where people’s wages are cut or they’re placed on short-time working. But their practical impact’s another issue altogether.

Natasha Holcroft-Emmess (4:39): Thank you for that. If you had to pick out a couple of, sort of, big issues in workers’ rights in the UK before the pandemic, what would you say were the kind of hard-hitting issues that were facing workers?

Professor Ford (4:53): Well, you know, everyone’s biased on what they focus on. I’ve focused on two really big issues. One is Brexit, of course, because the— come the end of December, when IP [Implementation Period] completion date is reached, then all of the relevant rights derived from EU law are vulnerable to repeal. So that’s number one big issue: To what extent, once the UK is freed from the EU, is no longer bound by EU law, will these rights be watered down? The other big, big issue that’s come into increased prominence following the decision of the Supreme Court in UNISON[2] is the extent to which workers have effective means of enforcing their rights. That’s an issue that’s taken on a lot more prominence post-UNISON because you may have many, many rights on the statute book, but if the enforcement of those rights is dependent upon individuals going to an employment tribunal, and obtaining some form of deterrent compensation, whether or not they actually give effect to those rights at the system level, across the board, is a bigger and much more difficult question. So I think those are the two big, big issues at the moment.

Natasha Holcroft-Emmess (6:19): That’s fascinating, especially the ability of people to enforce their rights and the ability of the courts to make that happen for people.

Professor Ford (6:26): Yes. Well, UNISON kind of showed, first of all, the problems people had in getting to court. Secondly, if they did, the compensation levels tended to be very, very low — not surprising, lots of these claims are small sums of money. And thirdly, perhaps most alarming of all, that even when people did win in the tribunal, often they didn’t actually ever get paid anything. There was a BIS survey in 2013,[3] I think it was, that showed approximately half of those who won some money in the tribunal didn’t get paid. So yeah, big issues.

Natasha Holcroft-Emmess (6:59): And do you think that, of the issues facing workers, are they the same but more extreme due to the public health crisis? Or has the onset of the virus generated novel challenges for workers’ rights?

Professor Ford (7:12): Well, some of them have— some of them are the same, but they’re also novel. I mean, you won’t be surprised to hear me say that. In a way you can see there’s two broad issues here. There’s the protection for those in the shutdown sectors; that’s estimated to be, by the Resolution Foundation, who have done a lot of tremendous work in this area, to be about 6.3 million workers.[4] And secondly, there’s the protections for those who are still at work, particularly those called “key workers” in areas such as health, retail and personal services, estimated at about 8.3 million according to the Resolution Foundation.[5]

Now, to some extent, we’re seeing the same issues arise that have arisen in the past; I mean, both groups, that is those who have to work and those who are in the shutdown sector, tend to be dominated by the low paid, by the young, and by— disproportionately by women. So you see a familiar pattern emerging that the most vulnerable workers, both in terms of those who’ve lost their income stream and in terms of those who are forced or required to carry on working, are those who are at the most— tend to be at the most vulnerable sectors of the labour market. In addition, in both sectors, you find disproportionately large numbers of those working on zero-hour contracts.[6] It won’t surprise you that those in the service sectors are often on zero-hour contracts, in retail and health and the like. But equally those in the shutdown sectors are also— tend to have a disproportionately high number of zero-hours workers.

Now, these are kind of familiar problems to us in labour law, because the extent to which labour law protects those who are— don’t work on the standard full-time permanent contract of employment is a familiar issue. Zero-hour contracts exemplify it. And equally, it’s a familiar issue that various groups, in particular women and  the young, tend to be disadvantaged in the labour market. So those are familiar.

But then we’ve also got a whole new set of issues arising because of things like the Coronavirus Job Retention Scheme that the Government has just put in place, probably the biggest State intervention in the labour market in my lifetime, maybe since the Second World War. And then other issues, such as, you know, the provision of PPE — personal protective equipment, that is — to those continuing working, so no surprise, both sets of issues have arisen here.

Natasha Holcroft-Emmess (9:49): Let’s turn now to the impact of the pandemic, and the measures adopted to try and control the spread of the virus, some of which are restrictive of our normal activities. Which measures would you say are having the biggest repercussions for workers?

Professor Ford (10:03): Probably again, you look at those— that division I’ve talked about. First of all those who’ve lost their jobs. I don’t know the precise figures for those off the top of my head, but you may have seen the press announcement, for example, that British Airways is just about to make 12,000 people redundant.[7]There are also an awful lot who have been “furloughed”, as it’s called, that’s the new term that we’re having to become familiar with as labour lawyers; that means, the workers are instructed to cease all work — they’re not even working from home, they’re told to cease all work — and then the Government, under this enormous and unprecedented intervention, guarantees 80 per cent of their wages up to a maximum two and a half thousand per month. So that’s had an enormous effect because huge, huge numbers have been furloughed. Original estimates were of 8 or 9 million I saw from the Office of Budget Responsibility and the Resolution Foundation.[8] So that’s measure one, those who have lost their job or been placed on effectively no work and are subject to a compensation scheme.

And the other big issue, of course, is well, what about those who are carrying on working? To what extent are they being given proper protection in relation to their working practices? And as I’ve said, they’re often low paid workers and they end up working in workplaces where isolating themselves isn’t easy. You think of the people working in warehouses arranging to deliver goods, arranging for goods to be delivered to households. And you think especially if those in the health service who’ve received— and care homes who’ve received an awful lot of attention. To what extent are they being provide with proper equipment to protect them, either from the virus or to ensure that they don’t transmit the virus to others for whom they may be responsible and coming into contact with. So yeah, I’d see those as the two main issues.

Natasha Holcroft-Emmess (12:20): What role does human rights law play in ensuring that workers are protected in the ways that they need to be protected during these times?

Professor Ford (12:29): As always, it depends what you mean by human rights. I mean, if you’re talking about a broad conception of human rights, as extending beyond narrow rights against the State, to express political opinions, as embracing socio-economic sort of rights, then it has some— I mean, the— in a sense, you could see even the duties about safe work equipment, you can see those as going back to protection of bodily integrity, and other such fundamental human interests. There have been some attempts to argue that, in addition to the various regulations on personal protective equipment for those working, which again owe their origin to EU law and we have specific legislation designed to require the provision of that equipment—There’s the potential for arguments based on Article 2 of the Convention,[9] in relation to the right to life, because of course, coronavirus, regrettable as it is, ends up generating the potential for affecting the right to life. So there have been arguments raised that, in the sphere of workplace health and safety, the duty would not just be imposed on the employer under the relevant regulatory framework, one might have scope for arguments based on Article 2 to the effect that the State owes duties to ensure that proper protective equipment is provided for people.

And secondly, of course, you’ve had the invocation of the kind of arguments based upon minimum income levels and protection of work that figure in the more— the socio-economic ends of the human rights argument. I’m thinking of instruments such as the European Social Charter, and so on and so forth, and the extent to which those broader socio-economic rights ought to be protecting people against job losses, loss of income, and so on and so forth.

I should say that there’s another aspect, of course, which is those who have been sent home on sick leave are often only entitled under UK law to statutory sick pay, which is set at pretty low levels, and there’s another issue there as to the extent to which those people are being given sufficient or adequate income. And there’s an ongoing debate as to whether or not those who are sent home on statutory sick pay, which is, as I’ve said, as at very low levels, are eligible to be furloughed, and therefore receive 80 per cent of their full wages. I don’t want to get into the technical details of the Scheme here, but you can see that there’s potential for a big discrepancy, that if you’re sick or required to be “shielding”, as it’s called to protect yourself from the virus, you may only be entitled to the very low levels of statutory sick pay, whereas if you’re sent home on no work, potentially under the furloughing scheme, you’re entitled to 80 per cent of your wages, so there’s a big issue there about protecting people’s basic level of income.

Natasha Holcroft-Emmess (15:37): It just seems like some people might be subject to quite arbitrary differences, but significant differences in their take home pay.

Professor Ford (15:46): Yeah, and there’s a big issue arisen, interestingly enough, in relation to pregnant women. There was an announcement on the 16th of March saying that the best thing for pregnant women was to go home and not be in contact with other workers, as a result of which many employers sent them home and paid them simply statutory sick pay. Now, that meant those women received extremely low levels of money effectively. Now, under the relevant UK legislation, if you suspend a woman from work because she’s pregnant, you’re supposed to pay her pretty much full pay; there are some technical wrinkles, but that’s pretty much the position. Now, an advice that Karon Monaghan QC and I did addressed this whole issue, and we ended up concluding that this was all actually a big legal error, that those women weren’t eligible for statutory sick pay, should have therefore been— if they were sent home, should have been suspended for safety reasons, but in which case they should have received full pay, rather than the extremely low level of statutory sick pay that they were in fact receiving.[10] So there you can see the effect of coronavirus has had a particularly serious impact on pregnant women, who, as we know already — see the enormous piece of research done by BIS and the Equality and Human Rights Commission[11] — are especially vulnerable to being treated disadvantageously or badly at work.

Natasha Holcroft-Emmess (17:24): Yeah, obviously you’ve got the, sort of, gender issue there as well, and it’s interesting that workers, employers rather, would be classifying pregnancy as something that entitles you to sick pay. Strange sort of categorisation…

Professor Ford (17:37): Well it was partly— they got confused, partly because of what the Government initially told them. I mean, one of the whole aspects of this, from a lawyer, which at an intellectual level is fascinating, but at a personal level is often distressing to see, is that the laws almost, or the policies, are almost having to be made up overnight. So on the one hand, employers were told the best thing for pregnant women is to send them home. On the other hand, the later legislation that came out indicated they weren’t eligible for sick pay, even though that was the indication that had been given beforehand. So you’re seeing an awful lot of confusion in what the actual legal protection of people is, partly because these schemes and changes to legislation are being introduced so quickly, that often you can’t quite work out what the actual effect of them is until it’s too late, because there’s no consultation going on, there just isn’t time.

Natasha Holcroft-Emmess (18:41): Could we drill down a bit into some particular issues facing specific kinds of workers? One category is employees who are being put on furlough leave. What’s the position of furloughed employees, and how effective do you think the furlough arrangements will be in avoiding large scale redundancies?

Professor Ford (19:03): Yeah, I think they are going to be effective to an extent. I think there’s a big problem in applying them to zero-hour or agency workers, which Alan Bogg and me have highlighted in some pieces we’ve written on the UK Labour Law Blog.[12] The real problem with agency and zero-hour contract workers is that, if there’s no work to be given for them, there’s no duty to pay them, so an employee can simply say, “all right, there’s no work for you; by all means, if it picks up, we’ll give you some work”, but in the meantime, they have no duty to pay. So there’s a big problem for them in relation to the extent to which employers are going to bother to take the decision to furlough them, because the decision is ultimately for the employer. Now, the employer may be kind and say, “all right, we are going— we’ll take a positive decision to furlough you and we’ll claim 80 per cent of your pay back”, but an employer equally may just think, “well, you know, I don’t really want this ongoing problem on my hands; we don’t need to furlough them because we don’t owe any liability to pay them any money, so long as we don’t— so long as there’s no work for them.” Now, that’s very different from an ordinary employee, because an ordinary employee, if they’re ready, willing and able to work, you have to pay them, even if you haven’t got work to give them. So there the employers do have an incentive to furlough. But with zero-hours type workers there isn’t. So I think that’s one gap in the scheme. There are others.

The other fundamental problem is this, that the scheme is, at the moment, due to expire at the end of June.[13]At the moment, employers are holding back on giving notices of consultation for redundancies — the general period of notice is 45 days — but once that horizon comes into view, it may be that before that employers are going to start giving notice. In other words, they won’t make people redundant while they can still recover 80 per cent of their wages, but when they see the expiry of the Scheme coming into view, they will be anticipating making redundancies to take effect after that, because it doesn’t need me to tell you, we’re anticipating a large recession coming on the back of Coronavirus. So the Scheme is working as a temporary expedient, but exactly how it’s going to fit as we approach the cliff edge… There are discussions going on about trying to avoid it having that effect. But you can see that’s a potential big, big problem, that effectively the Scheme will work while it’s up and running, but it can’t go on forever, and the moment employers see the end date coming up, they will say, “well, we’re going to get rid of everyone”, or large numbers of the workforce with effect from that date. So that’s the Scheme cliff edge that is the worrying feature of the future.

Natasha Holcroft-Emmess (22:01): And another group of people who are in a very precarious position are those who are self-employed. There is a Government scheme to preserve a percentage of the income of those who are self-employed. Do you think that the scheme is adequate?

Professor Ford (22:18): I’m not such an expert on the self-employed scheme. There’s obviously a problem in it’s got income thresholds in it. The aspect that’s received most attention is that those who are providing work through their own company, which is not an uncommon means of the provision of labour these days— So instead of doing it— you’re not doing it— you’re not employed by the institution for which you’re working, you’re not a direct employee, nor are you simply providing as an individual, so you’re not in the capacity of self-employed. Rather, you’re providing your labour through a company, which you’ve incorporated, and the company may end up paying you something of a salary, but you, in a sense, end up falling between the two schemes. Now it may be you can recover under the employee Scheme 80% or so much of the salary you pay yourself in your capacity as Director or employee of your own company, if you follow. But you will— these people will often end up recovering much, much less than they would do under either Scheme. So they end up not entirely excluded — they go into the employment Scheme — but they don’t recover as much as they would do under the self-employed Scheme, they don’t recover as much as they would under the employee Scheme, and this is a problem that’s been pointed out a lot, but at the moment there’s no suggestion of addressing it. So you get people who fall between both schemes. I mean, you see a similar problem with zero-hours and agency workers in a sense, because they end up, if they’re not furloughed, getting no benefits at all.

Natasha Holcroft-Emmess (24:08): And I guess in a similar kind of bracket is gig economy workers, because they are notoriously in quite a precarious position. Are the current measures having a substantial impact on gig economy workers?

Professor Ford (24:22): I’ve not seen figures for specifically the gig economy, but you could see they exemplify some of the problems I’ve talked about already. One problem is, they won’t be entitled to pay unless they’re provided with work. So if they are, as I’ve said— if the employer just says, “well, we’ve got nothing to give you, we’re not going to use you”, they end up not being— and decides not to furlough them, they won’t be eligible under the employee Scheme.

The other aspect that they will confront in relation to the employees Scheme is that the employee Scheme doesn’t really work by deciding whether people are really employees or not. There’s a lot of caselaw in the UK in establishing that, even if you call someone self-employed, correctly, the question is whether they are genuinely, really employees in accordance with the factual way they operate. That’s not how the Scheme operates. To be eligible on the Scheme, you actually have to be on— your earnings have to be taxed under what’s called the PAYE regulations.[14] If you’re not taxed under the PAYE regulations, you’re not eligible for the employee Scheme. Many of those who work in the gig economy will not be taxed under PAYE. Consequently, they will not be eligible at all for furloughing under the employee Scheme. Now, it may be they’re eligible, in those circumstances, under the self-employed Scheme, but that’s another issue. But you can see that’s another reason why those in the gig economy may end up not being eligible under the 80 percent employee Scheme.

Natasha Holcroft-Emmess (26:07): It’s really interesting. It’s kind of an indirect way that they may lose out because of the structure of their arrangements of employment.

Professor Ford (26:18): Yeah. Well, I think, to give some sympathy to the Government, they had to find a way of making this Scheme easy to operate that wouldn’t involve fraud. Because if they just said, “well anyone working for anyone can claim 80 per cent of their wages”, it would potentially be open to forms of fraud. So the way they’ve tried to do that, I think, is by saying, “well, you have to be paid via PAYE”. If people are paid via PAYE, and the employer can point to records of that, then it can claim for them — that’s a crude summary. So they had to have a sort of system that was easily administratively workable, but the effect of that is that those who are what we sometimes call “bogus” self-employed — that is, people who are really in a dependent labour relationship even though they’re described as independent contractors or self-employed — they often won’t be paid by PAYE. Why? Because the employer will try— want to make them appear as if they’re not employees. So, paying them via PAYE is almost an admission they’re really employees. So, you could see various aspects of labour law working unhappily together here, because in an attempt to stop people being employees and having all the rights of employees, employers won’t pay them via PAYE, with the consequence that they won’t be now eligible to claim under the furlough Scheme in respect of them.

Natasha Holcroft-Emmess (27:51): Some of the measures that have been brought in — such as staying at home, isolating ourselves — these have resulted in an increase in flexible working methods. I wonder if this transition has highlighted any gaps that may have already existed in accommodations for workers, such as people with disabilities or caring responsibilities? Do you think that we might move to a flexible working model moving forward?

Professor Ford (28:20): I’m not sure about that. I mean, one of the things that’s happening under the furlough Scheme is you— to be eligible, you have to be given no work at all.

Natasha Holcroft-Emmess (28:30): Why is that?

Professor Ford (28:32): I think— I’m not really sure. I think, in a way, the Government again needed a sharp dividing line. It couldn’t— It was probably meant to be a— some sort of anti-fraud thing. They didn’t want people effectively working, and the employer then recovering 80 per cent of their wages, or some percentage, on the basis they were only doing some of their duties. You can see the real problems in working out how much they were or weren’t doing. On the other hand, there’s similar problems in working out whether people are actually doing nothing. Because of course, even though the Scheme says, you’ve got to be doing nothing, it’s very hard to see how it’s going to debar people who will end up checking their emails or doing other things. So that’s issue one. The Scheme itself, in a sense, is not in favour of flexible working, because the idea under the Scheme is all or nothing — you either do no work and claim under the Scheme; if you do some work, the Scheme ceases to bite.

Now, the other thing you’re asking, the bigger question is, well, “what about— is this going to prompt new forms of flexible working in the future, working from home?” Maybe, who knows? I mean, the thing I’ve got most experience, of course, is with the court systems. And the courts have come on light-years overnight — in that extent, it’s like a war in terms of the technological developments in how they’re now doing hearings online or remotely, and everything, that they’ve been discussing the years. Suddenly all that has come to fruition.

What I would say is a note of caution about flexible working, if by that you mean— in the sense of working from home. It’s a nice label, but again, there’s evidence to suggest that, in the current epidemic, it’s mostly the high paid workers in secure jobs who are able to work from home. So they may be— “flexible working” has many, many meanings — but in the sense of whether or not it means you can work at home, fulfil caring responsibilities and the like, the beneficiaries of that tend to be those in the higher paid sectors, whereas those in the lower paid sectors, the ones that in the coronavirus have been most exposed to shutdowns, or having to carry on working, those workers often can’t work at home. So flexible working can end up being very much to the benefit of the high paid but not those at the most vulnerable end into the labour market.

Natasha Holcroft-Emmess (30:57): It’s interesting to think about how the pandemic might affect social attitudes to things like social security, and working conditions, and workers’ rights ultimately. I think the pandemic has made us realise this is something that affects all of us, and societal attitudes to, for example, working conditions and workers’ rights might change as a result of the pandemic. Do you think that’s overly optimistic?

Professor Ford (31:23): Who knows. I mean, you know— I’m a lawyer, not really someone with the crystal ball. But I think, one of the very interesting things you’ve seen is the recognition that the people that we are most dependent upon, when it comes to it, for providing the essential services that we all need, such as healthcare, are often the lowest paid. I mean, that’s just so stark in the current crisis, that the key workers, the workers who it turns out, who are essential for the actual delivery of the most vital social goods, turn out to be those who are often paid at or close to the national minimum wage. And I wonder whether that fundamental social injustice will retain its relevance after this pandemic, because the pandemic has really shone a bright light on that issue.

Natasha Holcroft-Emmess (32:24): This is a topic that really impacts all of us, whether it’s personally, or our loved ones, or people we know, and it’s great to have the issues laid out so clearly and discussed in this way. It’s definitely a topic worth keeping an eye on, so thank you very much for joining us.

Professor Ford (32:40): I mean, if you want to keep abreast of the labour law issues, there’s the UK Labour Law Blog, in addition to your own excellent blog, of course, but the UK Labour Law Blog, which I’m one of the Co-Editors on. We have a lot of up-to-date and informative stuff on labour rights and coronavirus written in an accessible and, you know, I hope engaging way. So that’s always a useful source of information if you want more, if you want to learn more about the Job Retention Scheme,[15] duties to provide personal protective equipment,[16] protection of pregnant women,[17] rights to leave the workplace in circumstances of serious and imminent danger.[18] You’ll find a lot of information on that.

Natasha Holcroft-Emmess (33:23): Thank you so much, Michael. That’s fantastic.

Professor Ford (33:25): It’s a real pleasure, thank you Natasha.

Christy Callaway-Gale (33:37): RightsUp is brought to you by the Oxford Human Rights Hub. The Executive Producer is Kira Allmann. This episode was produced and edited by me, Christy Callaway-Gale, and it was hosted by Natasha Holcroft-Emmess. Music for this series is by Rosemary Allmann,and Show Notes for this episode have been written by Sarah Dobbie. Subscribe to this podcast wherever you like to listen to your favourite podcasts.

[See next page for updates and further materials]

. . . . .

UPDATE: EXTENSION OF THE CORONAVIRUS JOB RETENTION SCHEME UNTIL 31 OCTOBER 2020

On 12 May 2020, the UK’s Chancellor announced that the Coronavirus Job Detention Scheme (also referred to as the furlough Scheme throughout this Episode) will remain open until the end of October.[19] Within this, furloughed workers across the UK will continue to receive 80 per cent of their current salary, up to £2,500, however “new flexibility will be introduced from August to get employees back to work and boost economy”.

. . . . .

[1] According to the UK Government website, “short-time” working refers to a situation in which an employee’s hours are cut in the context of a situation in which the employer does not have enough work for the employee. ‘Lay-offs and short-time working’ Gov.UK https://www.gov.uk/lay-offs-short-timeworking  

[2] R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51. Full judgment available here: https://www.supremecourt.uk/cases/docs/uksc-2015-0233-judgment.pdf. See also Abigail Adams and Jeremias Prassl. ‘A good day for the Rule of Law.’ Oxford Human Rights Hub (26 July 2017) https://ohrh.law.ox.ac.uk/a-good-day-for-the-rule-of-law/

[3] Department for Business, Innovation and Skills (BIS), ‘Findings from the Survey of Employment Tribunal Applications 2013’ (Research Series No. 177) (June 2014) https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/316704/bis-14-708-survey-of-employment-tribunal-applications-2013.pdf

[4] Jack Leslie and Charlie McCurdy. ‘The economic effects of coronavirus in the UK’ Resolution Foundation (30 April 2020) https://www.resolutionfoundation.org/publications/the-economic-effects-of-coronavirus-in-the-uk/.

[5] Jack Leslie and Charlie McCurdy. ‘The economic effects of coronavirus in the UK’ Resolution Foundation (30 April 2020) https://www.resolutionfoundation.org/publications/the-economic-effects-of-coronavirus-in-the-uk/. See also Maja Gustafsson and Charlie McCurdy. ‘Risky business: Economic impacts of the coronavirus crisis on different groups of workers’ Resolution Foundation (28 April 2020) https://www.resolutionfoundation.org/publications/risky-business/.

[6] According to the UK Government website, “zero-hours contracts” are also known as casual contracts and are usually for “piece work” or “on call” work. ‘Contract types and employer responsibilities.’ Gov.UK https://www.gov.uk/contract-types-and-employer-responsibilities/zero-hour-contracts

[7] Rupert Neate. ‘British Airways plans to make up to 12,000 staff redundant.’ The Guardian (28 April 2020) https://www.theguardian.com/business/2020/apr/28/british-airways-plans-to-make-up-to-12000-staff-redundant

[8] As at 11 May 2020, the total numbers of jobs furloughed was 7.5 million. ‘HMRC coronavirus (COVID-19) statistics’. Gov.UK (12 May 2020) https://www.gov.uk/government/collections/hmrc-coronavirus-covid-19-statistics.

[9] Article 2 of the European Convention on Human Rights provides:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

[10] ‘Advice: Statutory sick pay, the Coronavirus Job Retention Scheme and pregnant workers’ https://maternityaction.org.uk/wp-content/uploads/Ford-Monaghan-Advice-on-SSP-CJRS-21-04-20.pdf.

[11] Department of Business, Innovation and Skills (BIS) and the Equality and Human Rights Commission. ‘Pregnancy and maternity discrimination research findings.’ (May 2018) https://www.equalityhumanrights.com/en/managing-pregnancy-and-maternity-workplace/pregnancy-and-maternity-discrimination-research-findings.

[12] Michael Ford and Alan Bogg. ‘Furloughing and fundamental rights: The case of paid annual leave.’ UK Labour Law (6 April 2020) https://uklabourlawblog.com/2020/04/06/furloughing-and-fundamental-rights-the-case-of-paid-annual-leave-by-alan-bogg-and-michael-ford/; Michael Ford and Alan Bogg. ‘No legislating in a crisis? The Coronavirus Job Retention Scheme, Part 2.’ (31 March 2020) https://uklabourlawblog.com/2020/03/31/not-legislating-in-a-crisis-the-coronavirus-job-retention-scheme-part-2-by-michael-ford-and-alan-bogg/; Alan Bogg and Michael Ford. ‘Legislating in times of crisis: The Coronavirus Job Retention Scheme.’ UK Labour Law (23 March 2020) https://uklabourlawblog.com/2020/03/23/legislating-in-times-of-crisis-the-coronavirus-job-retention-scheme-by-alan-bogg-and-michael-ford/.

[13] See Show Notes for further details regarding the extension of the Job Retention Scheme to the end of October 2020.

[14] “PAYE Regulations” refers to the Income Tax (Pay As You Earn) Regulations 2003.

[15] Alan Bogg and Michael Ford. ‘Legislating in times of crisis: The Coronavirus Job Retention Scheme.’ UK Labour Law (23 March 2020) https://uklabourlawblog.com/2020/03/23/legislating-in-times-of-crisis-the-coronavirus-job-retention-scheme-by-alan-bogg-and-michael-ford/; Michael Ford and Alan Bogg. ‘No legislating in a crisis? The Coronavirus Job Retention Scheme, Part 2.’ (31 March 2020) https://uklabourlawblog.com/2020/03/31/not-legislating-in-a-crisis-the-coronavirus-job-retention-scheme-part-2-by-michael-ford-and-alan-bogg/; Michael Ford and Alan Bogg. ‘Furloughing and fundamental rights: The case of paid annual leave.’ UK Labour Law (6 April 2020)  https://uklabourlawblog.com/2020/04/06/furloughing-and-fundamental-rights-the-case-of-paid-annual-leave-by-alan-bogg-and-michael-ford/

[16] James Robottom. ‘The legal rights of healthcare workers to personal protective equipment during the COVID-19 pandemic.’ UK Labour Law (13 April 2020) https://uklabourlawblog.com/2020/04/13/the-legal-rights-of-healthcare-workers-to-personal-protective-equipment-during-the-covid-19-pandemic-by-james-robottom/

[17] Michael Ford and Karon Monaghan. ‘Statutory sick pay, the Coronavirus Job Retention Scheme and pregnant workers.’ UK Labour Lawhttps://uklabourlawblog.com/2020/04/28/statutory-sick-pay-the-coronavirus-job-retention-scheme-and-pregnant-workers-by-michael-ford-and-karon-monaghan/

[18] Stuart Brittenden. ‘The Coronavirus: Rights to leave the workplace and strikes.’ UK Labour Law (27 March 2020) https://uklabourlawblog.com/2020/03/27/the-coronavirus-rights-to-leave-the-workplace-and-strikes-by-stuart-brittenden/. See also Sandhya Drew. ‘At Amazon, safety and wellbeing do not come first, Nanterre Tribunal rules.’ UK Labour Law (21 April 2020) https://uklabourlawblog.com/2020/04/21/at-amazon-safety-and-wellbeing-do-not-come-first-nanterre-tribunal-rules-by-sandhya-drew/

[19] ‘Chancellor extends furlough scheme until October.’ Gov.UK (12 May 2020) https://www.gov.uk/government/news/chancellor-extends-furlough-scheme-until-october

“The question really, for me, is not so much one of the degree of deference that courts should grant the State, but the degree of empathy the court demonstrates towards those who suffer the multiple aggravated consequences of this lockdown….”

The COVID-19 pandemic has affected all of us in many ways. States around the world have imposed restrictions of varying levels of stringency to control the spread of the virus. The Central Government in India introduced a nationwide 21-day lockdown on 24th of March 2020. The lockdown saw an almost complete restriction on the movement of people and the closure of all establishments except those providing essential services. India’s lockdown has been described as the world’s biggest coronavirus lockdown and the harshest coronavirus containment measure in the world. The lockdown was declared with a four-hour notice period. It has been extensively reported that the impact of the lockdown has fallen most heavily on those most vulnerable. In this episode, we speak to Professor Kalpana Kannabiran, a professor of sociology and the Director of the Council for Social Development Hyderabad, about the Indian government’s response to the pandemic and the impact on rights.

Interview with: Kalpana Kannabiran (Council for Social Development Hyderabad)
Hosted by: Gauri Pillai
Produced and edited by: Christy Callaway-Gale
Executive producer: Kira Allmann
Shownotes: Sarah Dobbie
Music: Rosemary Allmann

Episode Transcript & Notes

DOWNLOAD TRANSCRIPT (PDF)

Gauri Pillai (0:01): This episode of RightsUp was recorded on 18th of April 2020. Government responses to the COVID-19 pandemic are changing daily and so this interview is of its time. To learn more about the developments in India’s response to the pandemic since this episode was recorded, please see the accompanying Show Notes.

Welcome to RightsUp, a podcast from the Oxford Human Rights Hub. We’re doing a three-part podcast series on the COVID-19 pandemic. Today’s episode focuses on the response of the Indian Government to the pandemic. It looks particularly at the human rights implications for the vulnerable and marginalised in India.

I’m Gauri Pillai and today I’m speaking to Professor Kalpana Kannabiran, who’s a professor of sociology and the Director of the Council for Social Development Hyderabad.[1] She has worked extensively on understanding the social foundations of non-discrimination, structural violence, and questions of constitutionalism and social justice in India, with a specific focus on gender, sexual minorities, caste, ‘adivasi’[2] and indigenous rights, and disability rights.

The COVID-19 pandemic has affected all of us in many ways. States around the world have imposed restrictions of varying levels of stringency to control the spread of the virus. The Central Government in India introduced a nationwide 21-day lockdown on 24th of March 2020. The lockdown saw an almost complete restriction on the movement of people and the closure of all establishments except those providing essential services. India’s lockdown has been described as the world’s biggest coronavirus lockdown and the harshest coronavirus containment measure in the world. The lockdown was declared with a four-hour notice period. It has been extensively reported that the impact of the lockdown has fallen most heavily on those most vulnerable.

Professor Kannabiran, thank you for joining us today.

Professor Kannabiran (2:34): Thank you for inviting me to have this conversation, Gauri.

Gauri Pillai (2:37): Absolutely. So my first question to you is about the very framing of the discourse around the pandemic. In your opinion, why is it important to talk about rights when talking about the COVID-19 pandemic, which has otherwise primarily been seen as a public health crisis? Do you think there is a tension here between the rights of individuals, and the interests of the State in the preservation of public health?

Professor Kannabiran (3:03): To open up the framing of the discourse, I would like to begin with Prime Minister Narendra Modi’s address to the nation on the 14th of April 2020, when the lockdown was extended, which opened with the following words, and I quote: ‘The Constitution of India speaks of “We the people of India”. Who are the people of India? The demonstration of our collective strength on Babasaheb Ambedkar’s birthday is our best tribute to him’ (unquote).[3] This is the first time he was invoking the Constitution in the context of corona, and importantly the invocation was on Ambedkar Jayanti.[4] And this serves as a springboard for us to examine rights, State responsibility, citizenship, and the Constitution in pandemic times.

The foregrounding of the opening lines of the Preamble, ‘We the people of India’, frames the core concern for us in terms of citizenship rights and State responsibility, not State interests, and I do wish to mark the difference between these two. COVID-19 and the tumult it has brought in its wake needs to be seen through the lens of the constitutional commons, which belongs equally to all. This means, as a starting premise, that the most vulnerable and the most precarious have a prerogative over State resources and State protection on every count. For after all, when we speak about substantive equality, is this not what we talk about? So as a first step, what we need to do is to cut through the universalising discourse around the COVID-19 pandemic, and to recognise that it spreads its tentacles unequally across the country. The lives of the poor — rural, urban, forest-dwelling, itinerant peoples — matter. The lives of migrant workers matter. The lives of the homeless matter. The lives of wage workers matter. The lives of persons with disabilities matter. Muslim lives matter. Dalit lives matter.[5] Adivasi lives matter. The effects of the public health emergency that COVID presents aggravates an existing and ongoing emergency that these communities have had to manoeuvre on a daily basis for decades. The lives of medical and health professionals and care workers engaged in testing, treatment, and care matter. They have been rendered precarious by the systematic dismantling of public health systems in the country and the consequent ill-preparedness of governments, lacking in capacity and capability, to handle a crisis in this scale. And I really think that the genesis of the problem that we are facing lies here.

Gauri Pillai (6:01): Thank you for framing the debate in those terms. Do you think we should also locate the debate against the larger socio-political context in India, beyond the narrower confines of the pandemic itself?

Professor Kannabiran (6:14): Within this larger scenario, I think we also need when we— especially when we talk about rights and State responsibility, we also need to make a specific mention of Kashmir. We can’t forget that when the COVID-19 lockdown happened, Kashmir was already reeling under a nine-month lockdown post-abrogation of Article 370.[6] When I made a trip to Kashmir as part of an all-women team in early February, what we found was that the lockdown post-abrogation had completely decimated jobs, incomes, there was a distress sale of land and assets, and the entire medical system — which was at one time robust — was in a shambles because of no internet connectivity.[7] So on top of this, ‘What does the lockdown consequent on COVID-19 do to Kashmir?’ is something that really merits a specific, you know, a specific focus.[8]

The lockdown also calls up other kinds of vulnerabilities and other kinds of vindictiveness that derogates from rights, and I refer specifically, for instance, to the fact that GN Saibaba[9] is accused under the Unlawful Activities Prevention Act,[10] and he is in prison with multiple disabilities, and we are talking about releasing prisoners from prisons during the pandemic.[11] We have people like Anand Teltumbde[12] and Gautam Navlakha[13] who have been taken into custody while the pandemic lockdown is on. And in fact, the NIA [National Investigation Agency] which sought the permission of the court on the 14th of April — the day the Prime Minister addressed the country — and I quote: ‘to use handcuffs on Anand Teltumbde to avoid physical contact with the accused amidst COVID-19 pandemic and the spread of novel coronavirus’ (unquote).[14] So you can see that this, you know, the ripples of the rights derogations that are apparently consequent on the pandemic, really have connections, back and forth, that spread far out and we need to, you know, somewhere account therefore, for the larger context, the larger political and social context, within which the pandemic lockdown has happened.

Gauri Pillai (9:06): In your response, you specifically highlighted the rights violations that have been occurring in Kashmir, and the arrest of human rights defenders like Gautam Navlakha and Anand Teltumbde. For our global audience, could you perhaps talk a bit more about the context surrounding some of these issues?

Professor Kannabiran (9:22): On Kashmir, Article 370 of the Constitution — which provides autonomy to Kashmir and recognises autonomy in Kashmir — was abrogated on the 5th of August 2019. And the State of Jammu and Kashmir was split-up into two union territories: Ladakh, and Jammu and Kashmir. And consequent on the abrogation of [Article] 370, you had several of the mainstream political leaders in Kashmir taken into custody under the draconian Public Safety Act [PSA]. But it wasn’t only the leaders who were taken into custody; there was a large section of youth, particularly, and some very senior lawyers, who were also placed under detention under the PSA, not only in jails in Kashmir, but also in prisons in Delhi and in Uttar Pradesh. And the lockdown in Kashmir bolstered the military occupation in the region, and was accompanied by a shutdown of internet.[15] Dr GN Saibaba was of course arrested earlier. And Gautam Navlakha, and Professor Anand Teltumbde were arrested on the 14th of April under the Unlawful Activities (Prevention) Act, on charges of plotting to assassinate the Prime Minister and collaborating in Maoist activities. And the argument— our argument, as human rights defenders, has been that these are completely unsubstantiated charges, and that the FIR [First Information Report] should be quashed because there are several discrepancies in the FIRs. But despite that, both Gautam Navlakha and Anand Teltumbde were taken into custody on the 14th of April. So this is the kind of context in which I raised these issues.

Gauri Pillai (11:47): Thank you for that. So now to just, sort of, specifically focus on the lockdown. Something that you mentioned in your previous response was that we should take into account the fact that the prerogative for resources should be for the most vulnerable and the most precarious in India, and as I said earlier, the lockdown has been criticised for having an especially adverse impact on this very set of people. So my question is, is there something specific about the socio- economic context in India which has resulted in this kind of an impact flowing from a lockdown?

Professor Kannabiran (12:19): What has happened as a result of this lockdown is that the rights of the working poor, the non-working poor, and the vulnerable have been grossly violated in the very manner in which the lockdown was first announced, with four-hours notice, and then extended with no notice, and in the abject neglect with which they were treated by the State in the first few days of the lockdown. And we saw several images of this in the media. We have particularly searing accounts and details from Delhi, both from communities that were affected by the recent violence in northeast Delhi in February — when Muslims especially were targeted for mass violence — and also from the exodus of migrant workers.

Just to look a little more closely at what this vulnerability really means, I would point towards the work— a recent article by economist KP Kannan, who maps the worker population for us in the light of the implications of the COVID-19 lockdown for the working poor. His estimates of 2018 show us that out of 461 million workers, 92 million are designated as belonging to the formal sector. All the rest belong to the informal sector. Even of these 92 million in the formal sector, 49 million are informal workers in the formal sector; that is, contract workers, temporary staff etc. Which means out of 461 million in 2018, just about 10 per cent belong to the formal sector.[16]  So we are talking about— when we’re talking about the dispossession of the working poor, and the vulnerability of the working poor, we are really talking of very large numbers.

So when you say, lockdown and stay indoors, and I will, you know, draw a Lakshmana Rekha,[17] we’re talking about a people who have no choice but to stay outdoors, to use Sanchez’s words, and to live 10 to a room, and to be mobile as a livelihood strategy. Workers in agriculture, artisanry, street-vending and construction comprise the largest section of the workforce, and this is entirely informal. It’s no accident or coincidence that these workers belong to the most vulnerable sections — Dalit, Muslim, Adivasi for the most part. We also know from other work — for instance, the work done by Ritajyoti Bandyopadhyay — that 40 per cent of the urban population lives in informal settlements, in urban areas, so this is what he calls a ‘re-ruralising’ of the city, while remaining invisible in the city. Urban migrants, to refer to other work in this area, are never completely cut off from their roots in their villages. Tariq Thachil, for instance, calls it ‘circularity’, where several times a year they return to the villages.[18] So, the circular movement between village and city is something that they depend on, and it is something that keeps them going, because the city is never home, it is the village that is home. So when you suddenly lockdown — work sites get shutdown, landlords demand payment of rent, and you have no wages to pay the rent with — you don’t just stay put. The natural impulse is for you to go back home, so that you can actually survive. But there’s no way of going back home because there is a complete transport shutdown. And while we had evacuation of people who were abroad, and you had evacuation of foreigners from India,  for the working poor, there were no arrangements made. So vulnerability is also exacerbated by a very skewed concern and a very skewed approach to redress that is actually weighted against the working poor.

Gauri Pillai (17:08): So I’d like to pick up now on something that you said earlier, about how we need to cut through the universalising discourse around the poor and the vulnerable, and I think we agree that people in poverty are not a homogenous class of persons. So, has the lockdown  exacerbated the disadvantage faced by people in poverty with intersecting identities, whether it be religious minorities, women, children?

Professor Kannabiran (17:33): Yes, certainly. And I think the, you know, the focus has to be on intersecting vulnerabilities. The fact is that the largest number of people who have been affected are Muslim, Dalit, Adivasi, for the most part. Among them, particularly among Adivasi and Dalit communities, women, women migrant workers, are a very large segment. But what has in fact come up really strongly after the lockdown is the targeting of Muslims, which has been extremely troubling. And this targeting of Muslims, in so many different ways, is cause for concern. There are fake news reports and incitement by a stridently Islamophobic media that use terms like ‘corona-jihad’, ‘corona-terrorism’, ‘Islamic insurrection’, ‘corona-bombs’ in shows on COVID-19.[19] And the Supreme Court refused to intervene to censure these news agencies, saying that he did not wish to ‘gag the press’, the term that it used was ‘gag the press’. And we know that this is not, you know, this is not a free press. This is— the terms and these programmes are actually, in fact, an incitement to violence.

Gauri Pillai (19:31): From what you’ve said so far it is becoming increasingly clear that this pandemic cannot be viewed as an isolated health crisis, and in fact, it sort of maps on to existing fault lines of inequality in Indian society. It has been argued that the lockdown violates the rights of individuals under Article 21 of the Constitution of India,[20]which guarantees them the right to life and personal liberty, including their right to livelihood. It’s also been argued that the lockdown violates their rights to equality and non-discrimination because it disproportionately impacts certain groups of people. In this light, do you think that the lockdown meets the standards of the proportionality test, which requires that there be a balance between the extent to which the right is infringed and the object sought to be achieved by the State?

Professor Kannabiran (20:22): What does not make the proportionality test is the means by which it was affected. It was an arbitrary decision. It was not transparent and totally lacking in empathy. There is no justice in saying, at 8pm, that four hours hence there will be a nationwide curfew and that it will last for three weeks. The positive measures taken with the well-being of the largest section of people ought to have been spelt out to the smallest detail. There was no dearth of time, no dearth of resources or access to all forms of media, most of which are by now totally controlled by the Government. So the proportionality test for me rests both in the means — that is, the process — and the end — the measure. We can only address the question of the proportionality of the measure when we have settled the question of the process, and we have a repeat of the process on 14th April, despite the extreme hardship imposed the first time. So, was the lockdown necessary? Let’s assume it was necessary. Does it meet the proportionality test? No, it doesn’t in its modalities.

Gauri Pillai (21:40): Right, so do you think, when you talk about modality, something that we should consider in our analysis of proportionality is the kind of mitigation measures that have been put in place to mitigate the impact of the lockdown on the poor — and the Central and state Governments have put in place such relief package? So can you maybe comment on some of the strengths and shortcomings of these relief packages when we look at it through a rights lens?

Professor Kannabiran (22:07): After the lockdown was announced, practically all state Governments and the Central Government put together, not just relief packages, but also administrative measures to alleviate distress, to provide support, and so on. And I looked at close to 500 GOs [Government Orders] and notifications spread across all the states and the Central Government.[21] There are some common elements across all the states, but then there are specific— there are certain specific measures and modalities that stand out.

And I think both in terms of recognising the centrality of the Directive Principles, Part Four of the Constitution and in terms of putting that out, rolling that out in terms of State action, the Kerala Government is a frontrunner. As early as 25th March, we have a GO passed by the— a Government Order passed by the Kerala Government, which is an extremely detailed order that sets out a range of guidelines on food support, empowering local self-governments’ provision of uninterrupted essential medical services to persons suffering, for instance, from cancer, diabetes, heart disease… You have specific income and food support for transgender persons, and shelters for them.

But in terms of, you know, what kind of State actions, not limited to relief, that might— that one needs to think about… Practically every state has guidelines on the release on parole of prisoners in order to decongest prisons. Now, in the State of Jammu and Kashmir, after August 5th, a number of people were detained, initially in Central Jail Srinagar, and then transported to Agra and Ambedkar Nagar in Delhi. Now, these prisoners have been released — the Supreme Court order very clearly says that prisoners should be provided decongestant transportation back home in the lockdown period. But now I know of more than a couple of instances of families of persons who have been released in Agra who were required to take passes and hire private taxis that cost up to 30,000 Rupees to go all the way to Agra and fetch the prisoners back. These prisoners were taken to Agra by air by the police.

Gauri Pillai (25:17): I also have a question about the legislative framework through which the Central and state Governments have imposed this kind of lockdown and the other measures surrounding the crisis. From what I understand, the lockdown was declared by the Central Government under the National Disaster Management Act of 2005, and several states have invoked the Epidemics Disease Act of 1897 to take various measures. And both these legislative frameworks seem to really discuss the nature of powers given to a state to manage a disaster or control an epidemic. So, in your opinion, how adequate are these frameworks when assessed from a human rights perspective?

Professor Kannabiran (25:55): In February 2017, the Government of India circulated a draft of the Public Health (Prevention, Control and Management of Epidemics, Bioterrorism and Disasters) Bill 2017. This was a Bill that was meant to repeal the Epidemic Diseases Act of 1897. There is much work on the Epidemic Diseases Act, especially its workings in colonial India, and there is no doubt that it is an extremely draconian legislation which needs to be repealed. However, any Act which replaces it must be firmly located within the constitutional framework and it must integrate human rights and public health concerns seamlessly.

On this count, the Public Health Bill falls short, because it fully reproduces the authoritarian writ of the State. My point in even alluding to the alternatives to the Epidemic Disease Act is to underscore the absence of an alternative to the Act, so it is a default setting that goes against the public interest and the common good.

Now, that said, it is still possible for state governments to frame regulations under the Act — we have several governments that have done that, in fact, specific to COVID — that integrates human rights concerns in the implementation of the Act. In fact, that is really the only route before us today. Well, although some states have framed regulations, the test lies in the integration of human rights standards. The brevity of the Epidemic Diseases Act — four sections in all — can be seen as a boon by what I would like to call an insurgent administration. It leaves the field open for state governments to devise their own modalities and designate the requisite resources — in terms of finance, personnel and institutional mechanisms — because nothing is prescribed under the Act. It is possible, therefore, for a state, through administrative and executive empathy, to write the Constitution into its implementation, taking on board the concerns voiced by epidemiologists, public health professionals, and human rights advocates in the context of the 2017 Bill.

The second legislation that has been invoked by the centre is the National Disaster Management Act 2005, which really occupies a very different administrative and legislative space. Simply put, an epidemic or pandemic is not a disaster and cannot be treated as one. By that token, the public authorities responsible for handling and mitigating disasters — namely, the Ministry of Home Affairs — is not the authority that should oversee State action in a pandemic context. However, that said, the structure of the NDMA is useful to replicate, with reference to the implementation of the Epidemic Diseases Act in the current context. I must stress that I’m not suggesting this as an enduring solution, merely as one that we can possibly explore given the absence of options before us.

Gauri Pillai (29:22): So now moving on, let’s talk about the role of courts. What, in your opinion, should the role of courts be and what degree of deference should courts grant to the State?

Professor Kannabiran (29:34): The question really, for me, is not so much one of the degree of deference that courts should grant the State, but the degree of empathy the court demonstrates towards those who suffer the multiple aggravated consequences of this lockdown. That is really where the focus should be. The court need grant no deference to the State when arbitrary State action has triggered an unprecedented crisis. This is an opportunity for the court to set this right by directing the State to take specific actions on a clear understanding that the enjoyment of Article 21 rights of the dispossessed citizen hinges on the enforcement of its fiduciary duty by the State under Part Four. So this, to my mind, ought to have been the role of the court.

Gauri Pillai (30:30): To what extent do you think that the courts in India have actually shown this kind of empathy to the rights of the marginalised and vulnerable?

Professor Kannabiran (30:39): I find that there are— that there is a structural problem with the approach of the Court in COVID-19 jurisprudence, and I see the problem is threefold.

The first is a troubling lack of judicial empathy for the working poor of this country, on whom the country is utterly dependent. And I will take an example. In response to a plea to ensure payment of wages to migrant workers, the Chief Justice of India asked the petitioners and I quote, ‘why wages are required when meals are provided by the Government?’[22] And in another petition, the Court even went to the extent of taking on board the State’s argument that the exodus was caused by rumour mongering and fake news. So, to not be able to empathise with the situation that workers are in, and to pose questions and take on uncritically status reports submitted by Government, is very, very deeply problematic to my mind.

There is a second part to this as well, which is if the first part of it has to do with judicial empathy, the second is the reluctance of the Court to hold the State to account. So, for instance, when television channels of a certain kind, you know, in their televised programs used extremely incite-ridden phrases that I have already mentioned earlier, and I don’t want to repeat, and there was a petition before the press, directing news channels not to resort to what amounts to incitement. The Supreme Court then says that it does not wish to ‘gag the press’.

The third part of my disappointment, shall we say, with the way in which the Court has responded is its unwillingness to explore a different idea of justice that is grounded in the Constitution, and yet informed by the aggravated suffering and harms that the pandemic and the lockdown has imposed disproportionately on the poor. It’s not that we don’t have reports, we don’t have work, that will assist the court in coming to an evidence-based conclusion, and crafting justice differently. It’s not a huge step, it is well within the writ of the Court to do it. So, in a sense, for me, the solution really lies in our collective wisdom based on scholarship.

Gauri Pillai (34:25): Thank you for that, and I think your point about crafting this new idea of justice based on constitutional values kind of brings me, very well, to my last question, which is sort of looking into the future, and wondering, or thinking about, what are some of the lessons that we have learned as a country from the COVID-19 pandemic regarding measures that we can put in place within the law and the role of human rights in avoiding a humanitarian crisis of this nature?

Professor Kannabiran (34:53): The first and most important point to me is that we never lose sight of the fact that it is the workers who make or break this nation. They’re already reeling from decades of mistreatment and callousness, and to just fling them into destitution, no matter what the emergency, is unacceptable. When the right to privacy was declared as a fundamental right, the judgment of Justice HR Kannan in ADM Jabalpur was resurrected in eloquent terms by the Supreme Court.[23] This, let’s remind ourselves, means that fundamental rights cannot be suspended even in conditions of emergency. That’s the bottom line. How have you forgotten that?

The jurisprudence of the pandemic, and post-pandemic, must be centred on calling the State to account on behalf of the poorest, most disentitled citizen. It is only if courts and law are seen to be just in the reliefs they order that we can move forward. And this is an extraordinary time, therefore the need is to understand the vulnerability of the working poor and not accommodate Governmental claims on constraints and limitations. For this, courts and Governments must revive a robust memory of the Constitution, of the Directive Principles, and act on that basis alone. Because, finally, any action, State or judicial, must be based on empathy. When we’re talking about human rights and humanitarian concern, we are talking essentially of empathy. We all inhabit the constitutional Commons equally, and have an equal stake in it, right from the dispossessed worker to the Chief Justice and President of India. And we should never ever forget that.

Christy Callaway-Gale (37:03): RightsUp is brought to you by the Oxford Human Rights Hub. The Executive Producer is Kira Allmann. This episode was produced and edited by me, Christy Callaway-Gale and it was hosted by Gauri Pillai. Music for this series is by Rosemary Allmann, and Show Notes for this episode have been written by Sarah Dobbie. Subscribe to this podcast wherever you’d like to listen to your favourite podcasts.

. . . . .

FOR ADDITIONAL MATERIALS AND MORE RECENT UPDATES ON THE COVID-19 PANDEMIC AND LOCKDOWN IN INDIA, SEE:

• The India Forum, ‘Justice and Rights In Viral Contexts In India’ (02 May 2020) https://www.theindiaforum.in/article/justice-and-rights-viral-contexts-india

• The Hindu Net Desk, ‘Coronavirus India lockdown Day 45 live updates.’ The Hindu (updated as at 8 May 2020) https://www.thehindu.com/news/national/india-coronavirus-lockdown-may-8-2020-live-updates/article31531359.ece

• Leela Murali. ‘Explained: As lockdown nears end, where India stands in Covid-19 cases, research.’ The Indian Express (1 May 2020) https://indianexpress.com/article/explained/coronavirus-india-lockdown-cases-research-numbers-6386916/

• Nikhil Inamdar. ‘Coronavirus lockdown: India jobless numbers cross 120 million in April.’ BBC News (6 May 2020) https://www.bbc.co.uk/news/world-asia-india-52559324

• Ritanjan Das and Nilotpal Kumar. ‘Chronic crisis: Migrant workers and India’s COVID-19 lockdown.’ LSE (8 April 2020) https://blogs.lse.ac.uk/southasia/2020/04/08/chronic-crisis-migrant-workers-and-indias-covid-19-lockdown/

• Johnny Wood. ‘In pictures: India under lockdown.’ World Economic Forum (1 April 2020) https://www.weforum.org/agenda/2020/04/coronavirus-covid-19-india-lockdown-pandemic/

• ‘India: COVID-19 Lockdown puts poor at risk.’ Human Rights Watch (27 March 2020)https://www.hrw.org/news/2020/03/27/india-covid-19-lockdown-puts-poor-risk

FOR PREVIOUS OxHRH DISCUSSION ON SOME OF THE ISSUES DISCUSSED ABOVE , SEE:

• Aashna Jain, ‘Have prisons in India become ticking time bombs amidst COVID-19 outbreak?’ Oxford Human Rights Hub (27 April 2020) https://ohrh.law.ox.ac.uk/have-prisons-in-india-become-ticking-time-bombs-amidst-covid-19-outbreak/

• Ayush Verma Pratik Kumar, ‘Jammu and Kashmir Public Safety Act, 1978: India’s use of preventive detention violates human rights.’ Oxford Human Rights Hub (17 March 2020) https://ohrh.law.ox.ac.uk/jammu-and-kashmir-public-safety-act-1978-indias-use-of-preventive-detention-violates-human-rights/

• Aishwarya Singh and Meenakshi Ramkumar, ‘Failure of the Indian Supreme Court to protect the rights of Dalits.’ Oxford Human Rights Hub (30 September 2019) https://ohrh.law.ox.ac.uk/failure-of-the-indian-supreme-court-to-protect-the-rights-of-dalits/

• Pranay Bhattacharya, ‘Human Rights and Internet Shut-Downs in Jammu and Kashmir.’ Oxford Human Rights Hub (6 September 2019) https://ohrh.law.ox.ac.uk/human-rights-and-internet-shut-downs-in-jammu-kashmir/

• Rongeet Poddar, ‘Constitutionality of India’s Unlawful Activities (Prevention) Amendment Bill, 2019: India’s McCarthyism Moment’. Oxford Human Rights Hub (14 August 2019) https://ohrh.law.ox.ac.uk/constitutionality-of-indias-unlawful-activities-prevention-amendment-bill-2019-indias-mccarthyism-moment/

• Jayna Kothari, ‘The Indian Supreme Court declares the constitutional right to privacy’ Oxford Human Rights Hub (4 October 2017) https://ohrh.law.ox.ac.uk/the-indian-supreme-court-declares-the-constitutional-right-to-privacy/

[1] Council for Social Development. http://csdindia.org

[2] ‘Advasi’ is a collective name used for the many indigenous peoples of India, deriving from the Hindi word ‘adi’, meaning ‘of earliest times’ or ‘from the beginning’, and ‘vasi’, meaning inhabitant or resident. For further overview, see ‘Adivasis’, Minority Rights Group Internationalhttps://minorityrights.org/minorities/adivasis-2/

[3] Babasaheb Ambedkar (full name Bhimrao Ramji Ambedkar) was a Dalit leader and a key architect of the Indian Constitution. For further details, see ‘Bhimrao Ramji Ambedkar’ Britannica https://www.britannica.com/biography/Bhimrao-Ramji-Ambedkar

[4] Statement from Professor Kannabiran: ‘I will for the moment ignore his countervailing references to ‘saptapadi’ and ‘agnipariksha’ at the conclusion of this address and his reference to self-isolation as inscribing a ‘lakshman rekha’ in his previous address although they fence in the reference to the Constitution and Preamble with patriarchal Brahmanical rhetoric.’

[5] In legal and constitutional terms, Dalits are known in India as Scheduled Castes. For further details, see ‘Dalits’, Minority Rights Group Internationalhttps://minorityrights.org/minorities/dalits/. See also Aishwarya Singh and Meenakshi Ramkumar, ‘Failure of the Indian Supreme Court to protect the rights of Dalits’ Oxford Human Rights Hub (30 September 2019) https://ohrh.law.ox.ac.uk/failure-of-the-indian-supreme-court-to-protect-the-rights-of-dalits/

[6] See also Pranay Bhattacharya, ‘Human Rights and Internet Shut-Downs in Jammu and Kashmir’ Oxford Human Rights Hub (6 September 2019) https://ohrh.law.ox.ac.uk/human-rights-and-internet-shut-downs-in-jammu-kashmir/

[7] Kalpana Kannabiran et.al. Interrogating the ‘Normal’ in Kashmir. Report of a visit to the valley 31 January-4 February, 2020.   https://indianculturalforum.in/2020/03/04/interrogating-the-normal-in-kashmir/

[8] See generally, Ayush Verma Pratik Kumar, ‘Jammu and Kashmir Public Safety Act, 1978: India’s use of preventive detention violates human rights’ Oxford Human Rights Hub (17 March 2020) https://ohrh.law.ox.ac.uk/jammu-and-kashmir-public-safety-act-1978-indias-use-of-preventive-detention-violates-human-rights/

[9] Indian human rights defender. See, for example, ‘India: UN experts call for release of human rights defender Saibaba’ (30 April 2020) UN Office of the High Commissioner for Human Rights

https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24534&LangID=E

[10] For discussion on the Unlawful Activities (Prevention) Amendment Bill 2019, see Rongeet Poddar, ‘Constitutionality of India’s Unlawful Activities (Prevention) Amendment Bill, 2019: India’s McCarthyism Moment’, Oxford Human Rights Hub (14 August 2019) https://ohrh.law.ox.ac.uk/constitutionality-of-indias-unlawful-activities-prevention-amendment-bill-2019-indias-mccarthyism-moment/

[11] See also Aashna Jain, ‘Have prisons in India become ticking time bombs amidst COVID-19 outbreak?’ Oxford Human Rights Hub (27 April 2020) https://ohrh.law.ox.ac.uk/have-prisons-in-india-become-ticking-time-bombs-amidst-covid-19-outbreak/

[12] Indian scholar and civil rights activist. See ‘India arrests activist Anand Teltumbde over 2018 caste violence’ Al Jazeera (14 April 2020) https://www.aljazeera.com/news/2020/04/india-arrests-activist-anand-teltumbde-2018-dalit-event-200414112452191.html

[13] Indian journalist and human rights defender. See ‘India: Crackdown on dissent continues during COVID-19’ Amnesty International (20 April 2020) https://www.amnesty.org/en/documents/asa20/2174/2020/en/

[14] State (NIA) v. Anand Teltumbde, Spl Case No. 414/2020 (NIA Case No. RC. 01/2020/NIA/MUM).  Remand Application.

[15] See also Pranay Bhattacharya, ‘Human Rights and Internet Shut-Downs in Jammu and Kashmir’ Oxford Human Rights Hub (6 September 2019) https://ohrh.law.ox.ac.uk/human-rights-and-internet-shut-downs-in-jammu-kashmir/

[16] KP Kannan, 2020. ‘COVID-19 Lockdown: Protecting the Poor Means Keeping the Indian Economy Afloat.’ Economic and Political Weekly-Engage, 3 April 2020. https://www.epw.in/engage/article/covid-19-lockdown-protecting-poor-means-keeping-indian-economy-afloat

[17] A term derived from the Hindu epic Ramayana, it refers to a strict convention or a rule, never to be broken. It has been criticised as a ‘patriarchal, Brahmanical convention of protection’. See ‘ “Don’t do politics”. But why not?’ Heraldo (21 April 2020) https://www.heraldgoa.in/Edit/Opinions/“Don’t-do-politics”-But-why-not-/159593

[18] ‘An Expert Explains: “India’s coronavirus lockdown will spotlight migrants” role in cities’ The Indian Express (3 April 2020) https://indianexpress.com/article/explained/migrant-labour-role-india-lockdown-tariq-thachil-6343869/

[19] See especially the petition of Jamiat Ulama-i-Hind & Anr. Vs. Union of India. https://www.livelaw.in/top-stories/cannot-gag-the-press-cji-on-plea-seeking-action-against-media-houses-for-communalising-coronavirus-pandemic-155177?infinitescroll=1  Accessed on 17 April 2020.

[20] For full text of the Constitution of India, see https://www.india.gov.in/my-government/constitution-india/constitution-india-full-text

[21] Statement from Professor Kannabiran: 400 of these GOs were accessed from https://covid-india.in (viewed on 17 April and 18 April 2020).

[22] https://www.barandbench.com/news/litigation/migrant-workers-plight-during-coronavirus-lockdown-will-not-interfere-in-government-decision-for-few-days-cji-sa-bobde  Accessed on 17 April 2020.

[23] See generally Jayna Kothari, ‘The Indian Supreme Court declares the constitutional right to privacy’ Oxford Human Rights Hub (4 October 2017) https://ohrh.law.ox.ac.uk/the-indian-supreme-court-declares-the-constitutional-right-to-privacy/

Interview with: Luisa Cabal (UNAIDS)
Hosted by: Mónica Arango Olaya
Produced by: Christy Callaway-Gale
Executive producer: Kira Allmann
Shownotes: Sarah Dobbie
Music: Rosemary Allmann

TRANSCRIPT (PDF)

Christy Callaway-Gale (0:11): You’re listening to RightsUp, a podcast from the Oxford Human Rights Hub. This episode is part of a special series on human rights and the COVID-19 pandemic. In this episode, we’ll be looking at past responses to pandemics to guide our response to this current global crisis.

Mónica Arango Olaya (0:51): Welcome to the Oxford Human Rights Hub RightsUp Podcast. I am Mónica Arango and we are doing a series of podcasts on COVID and human rights. Today we have Luisa Cabal as our guest. Luisa has led the global portfolio on Human Rights and Gender at UNAIDS since 2015 and she is currently the Director of Community Support, Social Justice and Inclusion. UNAIDS recently published a report on the lessons learned from the HIV pandemic and the intersection with human rights. It is so timely to have you here. Thanks for agreeing to be with us today.

Luisa Cabal (1:24): Thank you for inviting me.

Mónica Arango Olaya (1:26): Well, as I said, UNAIDS just published a paper on the lessons learned from the HIV pandemic, as a guide to the response to the current COVID-19 pandemic. I think that for a lot of people listening, it may seem like HIV and COVID-19 are quite different. Why is it helpful to look at the HIV pandemic for lessons in this current global health crisis?

Luisa Cabal (1:47): We put the paper and the guidance out there because it’s critical to apply lessons from 40 years of response and just to share some of the key lessons that can be applied to COVID. But there are lessons also from, for example, the Ebola response.

And I would start with one, which is central to a human rights-based approach, which is community participation, civil society engagement. In many occasions, the communities hold the solutions to address the issues that affect them. That became very clear with Ebola and also became very clear with marginalised communities in the HIV response. Key populations, in order to be effective… we needed to put them at the centre and we needed them to lead for the solutions. That’s one key aspect of the lessons learned.

But we also learned, we need to combat all forms of stigma and discrimination, that come in many manifestations. In COVID, we’ve seen xenophobia, racism, so it’s also a reminder that in our responses, and in government responses, non-discrimination, non-stigmatising campaigns, attitudes have to be placed at the centre.

And just to mention another one is, of course, how do we make sure that we remove barriers so that people are able to protect their own health and barriers around misinformation?  That’s one that comes at the front, at centre. But also, and I know we can talk and unpack this a little bit, one of the key areas where UNAIDS and partners and communities have worked is [in] times of crisis, right? The natural impulse is to focus or to resort to extreme measures, and at times are very strict, and at times punitive and coercive measures. And we learned this from the AIDS response by using, or overusing, criminal laws that then ended up further marginalising and stigmatising people.

Mónica Arango Olaya (4:01): You mentioned several interesting points there, and particularly the tension of human rights and the adoption of policies to enforce certain behaviour with a public health objective. Could you delve a little bit in[to] this tension, or if you see a tension to start with, between public health objectives and human rights?

Luisa Cabal (4:22): A human rights-based approach can seem in tension with, or antagonistic to, public health goals. And what I like to engage people in is that human rights allow, you know, for limitations, of rights at times of crisis, or for justified reasons, and we have clear guidance, in international human rights standards, around the boundaries of such limitations. And that’s where we need to be clear, that if we allow for limitation or derogation of some rights, they have to be— of course, public health emergency is a legitimate purpose.

But we should be clear around the other requirements. We really need to guide interventions around questioning the proportionality of those measures to the aim, to the necessity in terms of, are they evidence informed? What is the evidence telling them? Very important around “time bound” — many of the measures we adopt at times of emergency then stay in the books; for example, in criminal law, for decades. And are they non-discriminatory? So what we try to do is really ask governments to push themselves not to just act— We understand, in many occasions, it’s, you know, driven by that aim of protecting the public health of their people, but without looking at the consequences of some of those measures. So what we demand of governments is really, let’s unpack and make sure that those measures follow these requirements.

Mónica Arango Olaya (4:28): This, of course, brings to the centre the right to health and the notion that it is a fundamental human right and that it should be guaranteed for everybody. In terms of context, for some years, European nations have reduced their health system infrastructure, or at least it has not been expanded, or other regions like Africa have difficulty providing even basic healthcare. This raises a lot of important questions about the role of the state in guaranteeing everyone’s individual right to health. Resource allocation also is a part of that. Some governments, like Ireland, decided to take over the private healthcare sector to provide public healthcare. But places like the US, their entire health system is based on private healthcare. Do you see in COVID pandemic responses clarity on how the right to health should be protected and guaranteed?

Luisa Cabal (7:14): All of our work in the HIV response, and the work led by governments and by community activists that really pushed through the courts, through legislators, demanding more action… We really advocate to make sure that the right to the highest attainable standard of health is considered, and it’s a core priority for every government. And you’ve rightly pointed out that this pandemic is really revealing the weaknesses of many systems, even in the most developed countries. HIV, like COVID, reveal[s] the fault lines in our societies, reveal who really is left behind. In COVID, we have seen, and unfortunately will continue to see, who are left behind;  like the elderly, very affected, sometimes abandoned… What is going to happen in informal settlements when social spacing is not possible? So the pandemic reveals what are those cracks in the systems, in the health system? And it also helps us understand, how this pandemic exacerbates those inequities, and those inequities in access to healthcare services. But what I also like to say is that it’s an opportunity to rethink. I think the Secretary General is going to… is pushing for a slogan or an understanding that we should be building better, right? That our rebuilding efforts, as we emerge, hopefully soon, from this crisis, we’ll have left a rebuilding effort that builds better. And I do think that this applies to health.

Mónica Arango Olaya (9:19): You mentioned one key aspect of this pandemic is inequality and how poor people are definitely going to bear the brunt of the impact of this pandemic in a differential way, because either they live in informal settlements or, how you put it out, is they cannot have the luxury of social distancing. And they’re particularly vulnerable, unable to comply with some of the public health responses. How can governments be sensitive to these economic inequalities?

Luisa Cabal (9:49): Well, again, it’s the weakness of social protection systems. If people are living day-to-day, if in many contexts people don’t get sick leave, if people don’t go outside to the streets, cannot sell their goods… Absolutely, this is revealing sort of, how are we going to…. What are the… First of all the immediate measures— Many countries are providing, whether it’s cash transfers, or scaling-up the access of basic food stuff, for the poorest people, mobilising to make sure that people have the basic food nutrition needs met.

But again, and I think in this regard, you know, UN entities such as the World Food Program are playing an important role in making sure that those poorest can have access to those services. But again, going to the “how”, how can times of crisis remind us of what we need to build to make sure that we’re going to rebuild more equitabl[y] and we’re going to remove the equalities that the sustainable development agenda is also promising. So as we rebuild, what are the social protection systems that can be put in place in the longer term?

Mónica Arango Olaya (11:30): You also mentioned women and the disparate impact of the pandemic on women. There’s a clear rise in domestic violence, and care work has been shifted into the home, which is an additional burden on women. Also, another key question is access to reproductive and healthcare services. Do you see any good examples of government responses dealing with these issues right now?

Luisa Cabal (11:57): From where I sit, what we’re trying to really promote, at this point, is supporting UN Women’s efforts; they’ve played a critical role in providing guidance to countries around, what are the immediate actions that should be taken, as you mentioned, to, you know… there are issues around domestic violence, violence against women in the home, but also against children, that are rising. So what we’re trying to do, we work in over 70 countries around the world, is send messages to our country offices, to be… who have a seat at the table, at a planning table, to make sure that one of the priorities is making sure that those supports, to prevent violence and to respond to it, are adequately put in place in the context of the response, and hopefully can give a basis, where there haven’t been much services, a basis for rebuild.

And one of the areas I also want to touch upon is… I’ll refer to HIV but I also find the linkages to reproductive health services— which is our staff in the front lines are working with communities who need antiretroviral therapy, and who in the context of quarantines, of shelter-in-place measures, couldn’t go out to their health facilities to get their refills of their treatment. The same should apply to services, reproductive health services, that women need, whether it’s contraception, or other types of services that they would need in any situation, but that the lack of access can be exacerbated in times of crisis.

What we don’t want to see happen is what unfortunately has started to happen, which is using the COVID response as an excuse to put other measures in place. In Poland, for example, COVID responses have also included, I understand, increased penalties for HIV exposure and transmission. In Hungary, there are other measures around curtailing access to some therapies for transgender women. We have also heard about other restrictions around reproductive health services.

Mónica Arango Olaya (14:32): You mentioned there again the response of criminal law. UNAIDS has pushed against the criminalisation of HIV transmission, and there are a lot of lessons that can be learned about the use of criminal law in any health situation. Can you talk a little bit more about that?

Luisa Cabal (14:51): I think that, like other movements, we have learned that the state resorts to criminal law for several reasons; on HIV, it might be with the aim, or one of the aims, supposedly, of protecting public health. And we have learned that that does not work. It— criminalisation, overuse of criminal laws, further marginalises communities; it does not serve a public health purpose, it does not meet the aims it was created for, and it can be discriminatory.  So what we have learned is not just areas of criminal law related to HIV, but also to most marginalised communities. For example, what we call in HIV “key populations”, you know, people who use drugs, sex workers, transgender women, that in many contexts are criminalised. And what we have learned is that it cannot only be discriminatory, but it actually pushes communities underground, and pushes communities to the side-lines in ways in which they don’t even seek access to healthcare because of fear of being punished or discriminated against. So one of our key lessons, again, is criminal law should be the last tool that governments resort to. And in contexts of sexuality, of reproduction, of HIV, we have learned that criminal law becomes a stigmatising tool, a punishing tool, that does not achieve any public health goal.

Mónica Arango Olaya (16:40): You mentioned here, again, a tension between, “how do we learn from this pandemic, to rebuild from a better place with the principle of equality?” and how do, when things get back to normal… we don’t maintain situations, also, that could be problematic for human rights, like the ones that you’ve talked about. What principles should we follow here in order to understand which are the things that we should keep and which are the things that should not be allowed?

Luisa Cabal (17:12): I think that any measure that is limiting rights clearly has to be time-bound, and has to be revisited again and again and again, by a body, whether it’s a court… the judiciary has to review this. And I like to also give the example of HIV-related travel restrictions; again, at a time of panic, governments, parliaments very easily passed laws, in many cases, banning or expelling people living with HIV, that still exist in many countries, or banning travel by entry… denying entry to people living with HIV. We still face the consequences of those bans that were put in place decades ago and are still in place. And so this should be a wake-up call to see… what are the measures that we’re putting into place, so that… to make sure that if they make sense in a context of an emergency, a court of law is reviewing these measures to see if they’re still necessary, if they’re still proportionate, or they should be removed. We believe that oversight and accountability are critical as we look at the future.

Mónica Arango Olaya (18:39): Accountability mechanisms and remedies for right violations are, of course, at the centre of the UNAIDS report. How can these be guaranteed during the crisis when most of the people, including those who work in the justice system, are quarantined and there might be restrictions of rights such as freedom of assembly and freedom of expression?

Luisa Cabal (18:58): COVID has turned all kinds of… from businesses to education to the judiciary to services, upside down. But I also think that, and of course, not to underestimate the challenges that many less-resourced governments would have, but as much as possible, I do think that this could be an opportunity to see how we remove red tape that, at times, is there unnecessarily and that this will open the door for new ways of working, and new ways of working even in the judiciary. I just think that everybody, every institution is adjusting and responding, and I do think that we cannot hide [from] the challenges that COVID exposes, to not try to… not be even more creative, more innovative, to make sure that those core functions of civic engagement, of those principles of participation, but also the oversight and the accountability, need to happen, and civil society and communities need to push around how that should happen, but we also need to be responsive and be creative about how to make that happen.

Mónica Arango Olaya (20:26): This brings, again, the point that you started with, which is participation. And it could be very helpful for you to explain a little bit more [about] who should be participating, because it seems that the decisions on the health policy cannot and should not be only taken by government officials.

Luisa Cabal (20:45): And it cannot be an afterthought. I think that with Ebola, the leading experts on the ground would tell you that the 101 thing that they would push governments to do is engage the communities, engage the faith leaders, engage those closest to them, to find the solutions. But then also, you know, from the AIDS response, we also learned, and communities push to have a seat at the decision-making table. And our Executive Director of UNAIDS, in her high-level engagement at the UN and with government officials, she’s saying, we need the communities at the centre, the patients’ rights groups, which are the groups that need to be represented in the decision-making table. Let’s not forget that — it’s always an afterthought, and one of the biggest lessons from the HIV response is, we need to have them at the table.

Mónica Arango Olaya (21:46): One of the challenges of the HIV response, at some points, was access to antiretrovirals; that has changed to a certain extent. Right now, what we’re seeing is the lack of resources in intensive care and ventilators, and limited resources. How can public health and hospitals deal with these limitations?

Luisa Cabal (22:10): That’s the million dollar question, right? But I think that one of the big challenges is around global solidarity as well; it’s not just at national levels… In terms of information sharing, technology sharing, the resources… and it will be even more critical to have the international solidarity for when the pandemic starts hitting the poorest countries in… Let’s hope this doesn’t get as bad as we know [it] has gotten in other countries. We will still face challenges and I do think that human rights and again, reminds us that … And it is one of the seven take-aways in our paper, on our guidance that countries must work to support each other so that there’s no country or no community really left behind.

Mónica Arango Olaya (23:14): Can you share some examples, maybe, of challenges and success stories in implementing a human rights-based approach to healthcare across different jurisdictions?

Luisa Cabal (23:24): Maybe one of the things that comes to mind is the release of prisoners that are being held for minor offenses. Again, any organisation or institution fighting for criminal or justice system reform would call for looking for alternatives to incarceration. Well, I think that this public health emergency has pushed, in an accelerated way, unfortunately because of a crisis, to release many of the incarcerated populations. So I do think that even if the crisis brought this up, what can we learn from this to build-up in terms of prison reform? And I think that the UN is looking at potentially, as a statement, calling on governments to rethink and use this unfortunate crisis to release prisoners that will be at risk if COVID really wreaks havoc in these settings in many countries.

I also gave the example of HIV. Millions of people are relying on treatment, on access to their medicines every day to remain healthy. So a big effort, in terms of accessibility of services, has [been] really to push governments to change the regulations around how they dispense medication. So our ask is, there are so many areas of health where we will need to make these medications available and accessible to most marginalised communities, so the push is, how do we make this happen?

There are also, in terms of… as we talk about solidarity, groups emerging, creating funds of support because people are losing their livelihoods, but also those most discriminated in society, are being either kicked out from their homes because they are gay or transgender, and left on the street. So I do think that we’re seeing many forms of solidarity but also on the states, also stepping up knowing that their own people will be hungry, and so setting some temporary shelters, and giving the foodstuffs people need in this time of crisis.

Mónica Arango Olaya (26:04): Is there anything that you would like to add in terms of the lessons learned and the recent UNAIDS guidance?

Luisa Cabal (26:12): I want to thank you for the invitation. And it’s just to say that everyone has a role to play. I think from activists to students, we’re walking into uncharted territory, the magnitude of the crisis… As Secretary-General Guterres has said, we have not lived through such a crisis since World War II, so it’s really forcing us to think in new ways, to see how, in this very unequal world, how can we all contribute to reimagining and rebuilding a better world? So let’s not just live through this crisis and try to think that we’ll go to as it was before; for those of us working in human rights, working on women’s rights, working to make sure that communities can lead, based on their lived experiences and expertise. Let’s all think of how we build better and better for all.

Mónica Arango Olaya (27:22): Thank you so much, Luisa, it’s been a pleasure to talk to you.

Christy Callaway-Gale (27:24): RightsUp is brought to you by the Oxford Human Rights Hub. The Executive Producer is Kira Allmann and this episode was produced and edited by me, Christy Callaway-Gale, and hosted by Mónica Arango Olaya. Music for this series is by Rosemary Allmann, show notes for this episode have been written by Sarah Dobbie. Subscribe to this podcast wherever you like to listen to your favourite podcasts.

In this discussion, Sandy speaks with Colm O’Cinneide, a professor of human rights law at UCL, who also served on the member of the European Committee on Social Rights of the Council of Europe. They discuss the intersections between socio-economic rights and civil/political rights in the context of Europe.

Guests: Sandra Fredman and Colm O’Cinneide
Produced by: Kira Allmann
Music by: Rosemary Allmann

In this discussion, Sandy speaks with Judge Edwin Cameron, who recently retired from the Constitutional Court of South Africa after serving for more than two decades as a judge in South African courts.

Guests: Sandra Fredman and Edwin Cameron
Produced by: Kira Allmann
Music by: Rosemary Allmann

Join us walking on September 30, 2019, and make a donation to support legal aid.

This 10k sponsored walk supports advice charities in Oxford; together, teams in the 2018 Walk raised over £15,000 for their community.

Bob Nightingale, founder of LLST, commended the lawyers for supporting local advice agencies saying:

“In recent years life has become even harder for the most disadvantaged people. Austerity has caused hardship among the poorest people and created problems such as debt and homelessness. Often the advice agencies are the only place where those people can get help.

“2013 cuts to legal aid for many areas of welfare law mean that people who can’t afford to pay a solicitor can no longer turn to high street solicitors for help with matters such as benefits, employment or disrepair. Now changes to the benefits rules for people with disabilities is creating even more pressure on the advice agencies.

It’s fantastic that local lawyers will turn out year after year to raise funds to help to ease that problem,”

The High Sheriff of Oxford and Her Honour Judge Vincent will lead the walk.

Donate here!

This joint conversation between Professor Sandra Fredman and Dame Laura Cox, moderated by Hon Judge Jennifer Eady is a joint OxHRH event in collaboration with the Association of Women Judges to celebrate 100 years of women lawyers. The Association is launching the celebration of 100 years of women lawyers with an event at the Supreme Court, followed by 3 regional lectures with an academic and a women judge discussing a theme.

This lecture is part of that 3-part series and focuses on the failures of discrimination and harassment laws to secure safe work places for women.

Questions and comments from audience members have been edited out of this video.

**This episode is part of a special series on “Working Together: Human Rights and the Sustainable Development Goals” a British Academy project led by Professor Sandy Fredman, Fellow of the British Academy and Director of the Oxford Human Rights Hub. As part of this project, the Academy convened a roundtable in January 2018 with academic experts, policymakers and practitioners from the UK and overseas to discuss the ways in which human rights and developmental goals can work together to achieve the SDG agenda and particularly gender equality and women’s empowerment.**

Produced by: Kira Allmann (University of Oxford)
Interview(s) with: Sandra Fredman (University of Oxford)
Music by: Rosemary Allmann