Shami Chakrabarti: On Liberty
Listen to the lecture online (Q&A begins at 37 minutes in)
It is an enormous, if slightly daunting, privilege to be here to give this lecture, to be a guest of Hertford College, and indeed to give a lecture in John Donne’s name.
Be afraid, be very afraid – because you’ve taken a bit of a punt on me. The Sun newspaper once called me ‘the most dangerous woman in Britain’. But I hear people have been saying similar things about Nicola Sturgeon north of the border, and I may sue if people start calling her the most dangerous woman in Britain.
‘No man is an island, entire of itself; every man is a piece of the continent, a part of the main; if a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as any manner of thy friends or of thine own were’ – John Donne of course, Meditation XVII. And I’m sure he was thinking about all sorts of other things when he wrote that, but I can’t think of a better way to sum up what I think about human rights and why it’s so important that we cherish them and defend them from all sorts of very difficult challenges at this very difficult time – not just in British politics but in the history of the world.
We’ve called this talk ‘On Liberty’ because not so long ago I wrote a book called On Liberty. It caused enormous consternation in certain parts of politics and the media, I think because the liberty which I describe, the liberty that I’m talking about, is yes the organisation (the National Council for Civil Liberties) but also a human rights settlement. Not just naked, rugged individualism that would be complete liberty for the lion and absolute tyranny for the lamb, but a very carefully calibrated post-World War Two human rights settlement which is under threat. If you are at all interested this isn’t a book that’s going to keep you up late. My soon to be thirteen year old son says ‘you wrote a short book with large font mum’ which pretty much puts me in my place. But in part it’s my story as Director of Liberty.
I started work at Liberty the day before 9/11 (which makes me doubly dangerous; you ought to be really afraid I might be a Jonah) so in the book I talk about the challenges which the organisation has faced, the threats to our rights and freedoms that have emerged during this period in history that we call the war on terror. I don’t know whether we’re in the continuation of that war now, or whether we’re in the war on terror 2 – I’ll leave you to judge and maybe discuss that in a moment.
But Liberty, the National Council for Civil Liberties, was formed in 1934. Now, you might think that 1934 and 2015 are two years that couldn’t be more different and of course you’d have a point. There have been so many changes in that 81 year period. In 1934 there was barely television, let alone CCTV and reality TV. In 1934 we’d yet to discover DNA, let alone take it from anyone ever arrested for a criminal offence whether or not they were subsequently charged or convicted of anything. In 1934 there was no internet, let alone the capacity for the great democratisation but also blanket surveillance of entire populations that internet communications has brought us. So things were very very different in so many ways. And yet. In 1934 certain newspapers still around today, and still pillars of national public life today, would regularly run front-page headlines about the way in which the country was being invaded by refugees from eastern Europe. In 1934 you will recall it was a time of great austerity, economic uncertainty for lots of people. In 1934 the Far Right is on the rise and on the march in part in this country and all over Europe. But the particular stimulus for the formation of my organisation, and I am essentially the caretaker of this great organisation, is that hunger marchers had come all the way from those great northern cities to assemble in Hyde Park in central London, where they were promptly duffed up by the metropolitan police. That would never happen today, would it? (Forgive the legalese by the way, we can explain ‘duffed up’ later.) And what’s more, the particular technique used by the police was that some of them went undercover and dressed as hunger marchers. And they behaved in a deliberately provocative and violent way in order to apparently justify a more brutal policing response. That’s what happened. A group of people (much smaller than the generous audience here this evening) had been horrified by what they’d seen in Hyde Park, and so they got together in the crypt of St Martins in the Fields Church. Of course today they would have blogged or facebooked or tweeted, something like that, but they couldn’t do that because it’s February 1934, and so they write a letter to the managers of the Guardian newspaper. In it they write how horrified we are at what we have seen happen in Hyde Park and we today have formed a National Council for Civil Liberties to keep watch over the entire spirit of liberty in this country. Incredible. The audacity of it, that they just called it the National Council for Civil Liberties. Amongst the signatories to that letter, people who never did anything else with their lives, you know people like Clement Attlee and H. G. Wells, E. M. Forster, Vera Brittain, A. A. Milne. The list goes on. Activists. Writers. Lawyers. All coming together and saying we must defend the spirit of liberty in this country.
The next really brilliant moment, I think, is the post-war movement. Because it’s in that 1945/1946 period that freedom-loving people from all over the world come together and settle the Universal Declaration on Human Rights in 1948. And you know why. These people are not 1960s hippy liberals or pantalooned nineteenth century gentlemen -all the clichés and all the ways in which human rights folk are put down in political rhetoric. These are people who have lived through the horrors and terrors of the second Great War. They have seen bags of bones being carried out of Nazi extermination camps. They have seen people coming out of Japanese prisoner of war camps. And they decide that there have to be some values that can be agreed upon all over the world, some non-negotiables, some protections that people are not going to have to constantly take up arms against tyranny. It’s an extraordinary moment in human history, yet to be repeated I think. Think about how difficult it is to secure international treaties and agreements on anything important, from climate change to banking regulations, but these people did that. And they were slightly to the left of the centre of politics, slightly to the right of the centre of politics, there were representatives of all the great world religions and people of no religious conviction whatsoever. Eleanor Roosevelt called it the ‘Magna Carta for all mankind’. Now of course this year you will note there are lots of celebrations of the actual Magna Carta, and I hope you’ll forgive me for noting the irony that lots of politicians who are putting on their smart DJs to go to receptions celebrating the Magna Carta are the same people who want to scrap the Human Rights Act and pull us out of the European Convention on Human Rights (ECHR). What’s going on there? In the words of that great legal philosopher Tony Hancock: ‘Remember Magna Carta, did she die in vain?’ So that is the extraordinary moment: we have the Universal Declaration and then we have the regional instruments to make it law, make it enforceable, including our own European Convention on Human Rights. Churchill’s post-war legacy, drafted for the most part by conservative lawyers, is now under threat including in the forthcoming general election. Extraordinary to me that this should be on the table in a great old democracy in 2015, in the year that we celebrate 800 years of the Magna Carta.
What are the rights and freedoms that we’re talking about, that are under threat? What’s in this dreaded ECHR that people dislike? What’s the problem? It’s the rule against torture. It’s the right to life (now obviously not everlasting life because that would take a medical miracle and not legal drafting, but the right to positive protection of life and the right to investigation into untimely death/unnatural death). It’s the right against slavery – and you might think that’s a bit redundant these days but, no it isn’t. There are still people trafficked into this country and it was only a few years ago actually, only just before the last general election, that we secured a criminal offence of holding someone in servitude or as a slave. So the slave trade was abolished hundreds of years ago but there was no criminal offence of actually holding someone as a slave. And the police would say ‘it’s fine, we’ve got false imprisonment if you look someone in, and we’ve got offences against the person and threats and so on’. But what if you don’t lock them in? And what if there were threats but we can’t prove it or there’s been a different kind of oppression – this is a trafficked person who is afraid of recriminations back home. This person’s passport has been taken. This is someone with learning difficulties. There were people living as slaves in modern Britain and now that is a criminal offence, courtesy of the campaigning we were able to do and the litigation we brought under article 4 of the ECHR, the right against slavery.
There’s the right to liberty of course, the right against arbitrary detention, habeus corpus. It’s no less beautiful when the Latin is translated into the English language and other world languages too. Article 6: the right to a fair trial including the presumption of innocence when you are charged with a criminal offence. Of course, for a fair trial to mean anything there has to be access to legal advice and representation, and that is so much under threat in modern Britain. Legal aid is practically decimated. In fact, decimated is the wrong word because that means one in ten – there’ll be less than one in ten people who have access to civil legal aid in particular in modern Britain. I don’t know if you’ve ever been unfortunate enough to need a lawyer, but this is not a cheap pursuit and there are all sorts of people out there who are completely outside the scope of legal help in this country. That’s people who are potentially losing their children (not to the state but to an ex-spouse who has denied them access to their children), people who might lose their job, people whose homes are under threat, people who have other legal difficulties – no longer have access to civil legal aid in particular. It’s a real problem in modern Britain.
Article 8, very topical. The right to respect for your private life, your family life and your correspondence. Hugely topical in the context of surveillance and the balance between privacy and surveillance. And this is a national conversation I think we are only just beginning. In part because, forgive me, the securocrats did not tell us what they were doing to us in our name. And whatever your views are about Mr Snowden’s revelations (the Guardian newspaper has been called treacherous and Snowden has been called an enemy of the state etc), whatever you say about the proportional balance between privacy and security, surely that level of surveillance of entire populations rather than individual suspects should at least have been conducted under the rule of law? When was the public debate, let alone the parliamentary debate? Where is the primary legislation that governs the limits of that kind of surveillance? It was happening behind our backs. And occasionally there were debates about potential pieces of legislation (and this is where the war of words becomes so important. The spooks call it the Communications Data Bill and we call it snoopers’ charter. Words are so important in defence of human rights.) There were occasionally debates about pieces of draft legislation that might have been adopted to allow for greater pieces of blanket surveillance for all sorts of laudable reasons like fighting terrorism and online child abuse and so on. But those bills did not pass. And they were doing it anyway.
Article 9: freedom of thought, conscience and religion. Now of course we’re talking in the John Donne lecture this evening and you will know of course that the struggle for freedom of religion in this country is inseparable from the struggle for democracy itself. And article 9 is so important. It’s the right to the faith of your choice. It’s the right to no faith. And I think, more importantly than anything, it’s the right to be a heretic within any faith community.
Article 10: freedom of expression. Again very topical given recent events in Paris and elsewhere. We touched on the Leveson Inquiry and that balance between media freedom on the one hand and protecting people from the abuse of power on the other.
Article 11: freedom of association. Again there have been all sorts of inroads into the right to protest in this country in recent years. You’ll remember people arrested and prosecuted for reading out the names of dead Iraqis and dead British servicemen in Parliament Square. Under legislation passed post-9/11.
The most important right and freedom of all, the key to the human rights kingdom in my view is encapsulated in article 14 of the convention on human rights. What is that right? Why do I think it’s the most important? It is the right to non-discrimination – equal treatment under the law. I say it’s more important than anything else. I have this debate with school children and law students up and down the country every day, every week. Why is non-discrimination more important than any other human right? People like at me quizzically: ‘but surely torture, slavery, free speech, these are the most important ones. Why Shami? Why do you say equal treatment is so important?’ We lawyers call it non-discrimination. Humans call it empathy. I think it’s the most important because, in truth, there would be no torture and no slavery and no similar abuses of power if we really practiced empathy or equal treatment.
You see, when people get upset in parts of the media and politics about human rights in my experience they do love human rights – their own. And those of their family, and people like them. It’s other peoples’ human rights which are a little bit trickier. In fact the man who once described me as the most dangerous woman in Britain was a very good case in point. A journalist on the Sun (he’s not there anymore) called John Gaunt. In addition to writing a very popular column in the Sun he was what they call a shock jock on talkSPORT radio. I’m looking at some incredibly blank faces at this moment because you’re a Radio Four audience, aren’t you? But that’s ok. So talkSPORT radio is what it sounds like – it’s talk about sport and some talk about things that aren’t sport. And a shock jock is a ranty American-style radio presenter and his job is to get people going, get them angry about current affairs or sport or whatever it is. And people phone in and they have a good old rant. And it’s pretty good stuff in a healthy democracy. It’s not to everyone’s taste but I think it’s really important. One time I was in the back of a London taxi when John Gaunt started laying into me because I represented everything that was rotten in the United Kingdom. Metropolitan, liberal elite. And he used to have a jingle on his morning programme that was him doing this ‘Shami! Shami! Shami!’ in absolute disgust. I was in the back of this cab and the jingle played, and I just sort of looked down. The cab driver said ‘that’s you?’ but I said ‘No, I’m the BBC journalist Reeta Chakrabarti’. (No relation by the way.) So John Gaunt had a massive problem with everything that I represent. ‘This is political correctness gone mad from the metropolitan liberal elite etc’. And then. He got into an argument with a politician on the radio. The argument was about whether smokers should be allowed to foster and adopt children. A particular local authority had decided that no smoker would be allowed to do this anymore, because of the harmful effects to children of passive smoking. And this upset John. John had himself been a child in care; he’d had a terrible time in care, he’d been abused, and was ultimately saved by his aunt who fostered him and eventually adopted him. She was a smoker – she wouldn’t smoke in front of the kids would go outside late at night and have a cigarette. John argued it should be fine if a smoker promised they won’t smoke in front of the children, they’ll only smoke late at night, outside of the house. The politician said no, no we can’t do that because I have friends who are smokers and they’re all liars. And John said you can’t say they’re all liars, you’re being a fascist, you’re being a health nazi and the politician said I’ve got you now. You just called me a Nazi on the radio and all these people are my witnesses. John immediately collapsed into a jelly and apologised profusely but it was too late. There were about three and a half million complaints to OFCOM and John was sacked. Not temporarily suspended. Not warned. Not invited to the Principal’s Study for a ‘you’ve let the college down’ chat. Nothing like that. Just completely canned. That’s a big part of his livelihood, he’s lost his talk show because he upset that politician. And they were both giving as good as they got, and this is a professional politician who can take care of himself on the radio. John went to see some lawyers and they said no, in your contract talkSPORT radio can dismiss you – unless that contract has to be read subject to article 10 of the ECHR and under the Human Rights Act. So John begins his great struggle. And he has a case currently pending (it’s now some years later) in relation to his free speech in the European Court of Human Rights. My friend John Gaunt. And in fact he even came on the BBC with me and said Magna Carta was for the toffs but the Human Rights Act that’s for ordinary blokes like me. Ordinary Sun columnists who have their own radio show, but even so. So there it is. Unlikely suspects, usual suspects. It’s not just Abu Qatada. It’s John Gaunt. These people are not the best poster boys for human rights but be careful what you wish for because you might need them one day.
In the book I chart three trends that have been particularly prevalent since 9/11 and the war on terror began. It’s the words again isn’t it: ‘war on terror’. It’s like President Nixon’s war on drugs that led to this exponential growth in the American prison population. We’ve now got these octogenarians sitting in American prisons, and more black men currently in the American prison system than were ever enslaved in the whole period of American slavery. The ‘war’ is what allows you to do these things. And of course a war against an abstract noun which describes a terrible part of human behaviours, but nonetheless a part of human behaviour that has always gone on and will always be a part of the human condition, is a war without end. It’s a permanent emergency, it’s Donald Rumsfeld’s new normal. And it justifies so much exceptionalism that you wouldn’t otherwise tolerate and deprives you of the values and moral compass that I think you need most in difficult times.
The trends that I chart in the book are, firstly, the slow death of privacy. Not just as a human right but as a personal and social value. And this is caused not just by the threat of terrorism and other serious crime but by technological development. It’s not just the big brother state that is watching us. We’re sometimes not very good little brothers and sisters to each other. And our kids are the experimental generation. The things you can tell by access to somebody’s mobile phone is just extraordinary. And this is even without the blanket surveillance of entire populations all over the world that has been revealed by Edward Snowden. In the interests of fairness, if the Home Secretary were here now, what would she say? Well I think she’d say something like ‘the innocent have nothing to fear’. Have you heard this? ‘Nothing to hide, nothing to fear’. This is a very common slogan after 9/11. Well I would say tell that to the hunger marchers who had people go amongst them in order to suppress their protest. Tell that to my friend Doreen Lawrence, with whom I carried the Olympic flag. Extraordinary woman: extraordinary strength and humility at the same time. You know her story, how the brutal murder of her son led to perhaps the greatest campaign for racial justice that this country has ever known. Thanks to Doreen. But the hits keep on coming and just within the last couple of years, she has learnt that not only did the police not adequately investigate her son’s murder, they were investigating her instead. When she started her campaign and started to embarrass and annoy the police, she became the subject of surveillance. They put undercover officers in her friendship circle in her home. Nothing to hide, nothing to fear? And what about those women in the environmental movement. Have you heard about them? The women who met a friend who becomes a boyfriend at a Greenpeace meeting. I mean this is not Al Qaeda. These are vegetarians, ok. They’re not ISIS. What are they going to do? Attack you with some quinoa or something. They went to Greenpeace meetings. They formed friendships and relationships with men which sometimes went on for up to seven years. I’ve met these women. And then the boyfriend, who one minute was in the family photographs, is gone. Disappeared off the face of the earth. Years later they find out that was an undercover cop from the special demonstration squad. They were under surveillance as domestic extremists. Those radical vegans. So the innocent have nothing to fear from blanket surveillance, from unchecked surveillance power? I disagree. But that’s one trend that I talk about in the book.
Another is the decline of due process. The Americans call it due process; we call it fair trials. Actually taking the trouble to arrest someone and charge them with a criminal offence before you lock them up for long periods pending trial, and to actually convict them before you punish them. We have seen attacks on due process not just in Guantanamo Bay courtesy of the US Government, but also we saw it in Belmarsh prison after 9/11. We see it still with community penalties that are dished out to terror suspects for long periods. For years and years people are under house arrest in this country without police interview, let alone charge or trial. And we’ve seen it outside the terror context with ASBOs and CRASBOs and all these BOs that were designed to make it easier to punish people without a fair hearing. And the argument is that the police know who the bad boys are. It is patently obvious who the bad boys are on any council estate in the country (because this was about poverty and poor people and low level nuisance and petty crime). I don’t doubt it’s a menace but it was just so clear, wasn’t it, that in house number one you have decent law abiding families, and in house number two the hoodies and the neighbours from hell. We know the difference without any kind of fair hearing. That’s the ASBO, the way in which certain people reckon they know the difference between the worthy and the unworthy poor.
Which brings me to the final trend which is this denigration of the other. This fear of the other. Looking for people to denigrate whether it’s refugees and asylum seekers, whether it’s kids on council estates. It’s the other. It’s divide and rule. And the powerful have been doing that to the vulnerable all over the planet forever. Which kind of takes me to my conclusion really. Which is that what’s currently at stake in our debate, the existential threat to our rights and freedoms in this country, in my view, is the suggestion that we should scrap the Human Rights Act and pull out of the ECHR. Move away from that inspirational amazing post-WW2 moment when people from all over the world decide to share these values and entrench them in post-empire constitutions and bills of rights, but also in regional instruments like the ECHR. I think that is the biggest question facing this and future generations in relation to rights and freedoms in the world – and it just seems bizarre to me, in this shrinking inter-connected planet of ours, that some people should want to pull out of that amazing inspirational settlement.
The late great Tom Bingham spoke to Liberty six years ago at our 75th anniversary conference and he set out all these articles of the convention far better than I ever could, and ended his remarks by saying: ‘Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary? Are any of them unBritish? There may be those who’d like to live in a country where these rights are not protected. But I am not of their number.’ And no, I’m not either. Why should internationalism only be for corporations, organised criminal gangs and terrorists. Why shouldn’t internationalism also be for ordinary people, their human rights protection and their values. Any man’s death diminishes me, because I am involved in mankind. And therefore never send to know for whom the bell tolls; it tolls for thee.