Noel Whitty

IS HUMAN RIGHTS PREPARED? RISK, RIGHTS AND PUBLIC HEALTH EMERGENCIES

A new force seems to be at work in public health law and practice. Consider, for example, the proliferation of references to ‘preparedness’; specifically, ‘public health emergency preparedness’ and its more specialised variants such as ‘public health emergency legal preparedness’ and ‘international legal preparedness’. There is also increasing use of related phrases such as ‘global public health security’ and ‘international health security’. Of course, a proliferation of terms is not enough to prove that a new force is in play: language shifts all the time in all sorts of areas, and although such changes may reflect and contribute to deep social transformation, they can also be nothing more than passing fashions with little or no impact. But public health emergency preparedness does not feel like a superficial, short-lived trend: in fact, it seems almost the exact opposite. Indeed, as David Fidler and Laurence Gostin emphasise in their recent book, Biosecurity in the Global Age, a ‘policy revolution’ seems to have taken place – a revolution brought about by a ‘collision’ of public health and security.1 The collision of security and public health is our focus in this article. But before explaining why, we need to define ‘public health emergency preparedness’, in particular its impressive–sounding correlate, ‘global public health security’, and its less readily comprehensible subset, ‘public health emergency legal preparedness’. In the World Health Report 2007, Dr Margaret Chan, Director-General of the World Health Organization (WHO), described ‘global public health security’ as ‘the reduced vulnerability of populations to acute threats to health’.2 Later in the same report, more detailed definitions were provided: Public health security is … the activities required, both proactive and reactive, to minimize vulnerability to acute public health events that endanger the collective health of national populations. Global public health security widens this definition to include acute public health events that endanger the collective health of populations living across geographical regions and international boundaries … .[G]lobal health security, or lack of it, may also have an impact on economic or political stability, trade, tourism, access to goods and services and, if they occur repeatedly, on demographic stability.3 The other term that requires some explanation is ‘public health emergency legal preparedness’. Stated shortly, this is all about having the right laws in place and then using them in the right way in a time of public health emergency.4 In other words, it is about both legal preparedness for, and response to, public health emergencies – it is both proactive and reactive. More generally, it can be said to be an essential part of both public and global public health security, and a subset of public health emergency preparedness.

What is a Fair Trial? Rape Prosecutions, Disclosure and the Human Rights Act

This article engages with the vogue for predicting the effects of the Human Rights Act 1998 by focusing on the rape prosecution and trial. The specific interest is feminist scrutiny of the right to a fair trial, particularly the concept of ‘fairness’, in light of the increasing use of disclosure rules (in Canada and England) to gain access to medical and counseling records. Transcending the two contemporary narratives of ‘victims’/women’s rights and defendants’ rights in the criminal justice system, the authors argue for the infusion of the legal debate on disclosure with feminist understandings of wider cultural debates. They suggest that an increased reflexivity about intimacy, publicity and power, leading perhaps to the development of a concept of ‘democratic publicity’ (Fraser, 1997, p. 100), might help to revision the meaning of ‘relevant’ evidence in the rape trial. They also suggest that the wide-ranging cultural debate about memory, truth and history, and the emerging commitment to experimentation in responding to massive, institutionalised human rights violations (including apartheid, war crimes and child abuse) might be of use in deepening current thinking about the rape trial and listening to the ‘voice’ of the complainant.

Crowning Glory: Public Law, Power and the Monarchy:

‘New public law’ has a keen interest in the deployment of power and the shifting nature of the public and private. In this article, we argue that the historical legacy of the Crown has hindered the ability of public lawyers to respond to changes in modes of governance in the UK. The constitutional law textbook tradition has played a key role in limiting critiques of the Crown because of the obfuscation that surrounds the legal and political status of the Monarch. However, instead of discounting the significance of the monarchy, we use it as a resource for exploring governing power, the blurring of boundaries and constitutional renewal. Our starting point is the life, death and, most importantly, the funeral of Diana, Princess of Wales. The latter event exposed the political relevance of the ‘personal’ in a most dramatic way, generating claims about the ‘feminisation of the government’ and ‘emotions augmenting democracy’. We follow through on these claims in order to focus on the effects of adopting private, intimate-sphere norms in the public sphere, in particular public-sphere decision making. While aware of the risks associated with this ‘transformation’ of democracy, we conclude that the increasing centrality of the intimate merits consideration in new public law’s search for progressive tools of modern governance.

Reflections, New Directions

THIS SPECIAL issue of Social and Legal Studies emerged out of the Keele Conference on Gender, Sexuality and Law, held at Keele University in June 1998.1 The conference, subtitled ‘Reflections, New Directions’, was organised by the Gender, Sexuality, and Law Research Group in the Department of Law at the University. This issue contains articles based upon four of the plenary speeches at the conference. We have also included an article that we think complements these, also given at the Keele conference, but submitted independently to Social and Legal Studies. As a collection of work, this issue presents leading scholars in the field bringing theory and practice to bear upon a range of historical and contemporary debates. Read individually, each article exemplifies a particular yet complementary approach to socio-legal analysis. Each author offers an exciting, insightful and, at times, personal statement that reflects the diversity, breadth and dynamism of scholarship in gender, sexuality and law. We are grateful to the editorial board of Social and Legal Studies for agreeing to a special issue of the journal and in so doing continuing to support scholarship in this area. The subtitle ‘Reflections, New Directions’ was an invitation to all the conference participants to ‘take stock’; that is, to look back, to consider where we are now, and to ask where this may lead us. Over recent decades, scholarship in the field of gender, sexuality and law has undergone a series of shifts (see also Naffine, 1990). Early work (in this case ‘early’ being the early 1980s) developed in different directions. One trajectory focused on substantive legal inequalities. Its main concern was laws that excluded or acted to the detriment of women. Scholars in this tradition interrogated issues such as women in the legal profession, equal pay, formal discrimination within statutory law and, particularly in the United States, constitutional law questions relating to privacy, autonomy and equality (for example, Fuchs Epstein, 1981; O’Donovan, 1985; Stang Dahl, 1987). This trajectory was pursued by both liberal legal feminists – understanding law as essentially neutral and gender inequality as