On 20 September 2001, President George W Bush addressed a joint session of congress. Tony Blair was a guest of honour. In the shadow of 9/11, Bush declared: “Tonight we are a country awakened to danger and called on to defend our freedom.” A few moments later he uttered the phrase that would soon become a byword for atrocity; it was the first time the world heard the words “war on terror”. After that, in the name of “freedom”, governments across the west used this as their justification to torture detainees, detain citizens without trial, murder prisoners of war, and roll back civil liberties for the guilty and innocent alike.
When the planes hit the Twin Towers, Shami Chakrabarti was midway through the second day of her new job as an in-house lawyer at Liberty. A former government lawyer, some might have thought her an unusual hire for the UK’s pre-eminent human rights charity. Twenty-three years later, over black coffee on a rainy Monday in London, Chakrabarti smiles ironically: “I was a Sith turned Jedi.” One doesn’t necessarily expect a peer of the realm to lead off an interview with a Star Wars reference, but that’s Chakrabarti’s style. A familiar face across TV debates for nearly two decades, she is known for calmly advocating for the marginalised, often in the face of aggressive derision.
Chakrabarti is equanimous about her journey to the Light Side of the Force. Called to the bar in 1994, she spent eighteen months “schlepping around general common law practice” before joining the Home Office. Her decision to work for Michael Howard, Chakrabarti says, provoked askance looks from her friends. But she believed it’s the job of lawyers to advise ministers on the law and help them make the best decision, regardless of their political affiliation. “I just didn’t believe,” she says, that the home secretary of the day would actually want to make a decision that put them in breach of domestic or international law.” (She still believes the former but is less sure about the latter.)
Chakrabarti remains a passionate advocate for the value of the Government Legal Department, talking animatedly about the quality of lawyers it attracts. She credits her time at the Home Office as invaluable to her later career: “I defended Strasbourg [European Court of Human Rights] cases at the Home Office before I brought them at Liberty”. The experience stood her in good stead. On seeing the turn of the political weather after 9/11, she correctly predicted that the British government would try to use immigration law to extend detention without trial. (“Guantanamo-style detention in Britain”.) Within two years she was promoted to Director. She spent the next two decades advocating for human rights in the courts, television studios, newspaper pages and now as a member of the House of Lords.
Given that Chakrabarti has spent her entire career fighting for civil liberties, it’s strange that she so often finds herself on the opposite side of public debate to those who talk most loudly about “freedom”. Nigel Farage, Boris Johnson, Liz Truss, Kemi Badenoch and Robert Jenrick have all promised freedom in various ways. What makes Chakrabarti different? “Freedom,” she says, isn’t just “freedom for the wolf to do what it likes to the lambs.” Freedom as a concept is too often bastardised to mean entitlement for the powerful to do whatever they like without censure. Too often, in our public debate, “freedom” is set against “equality”, she says, while redistributing wealth from the richest to the poorest is castigated as distorting the “free market”, and seeking to remedy historic or structural injustices is an “attack on free speech”.
For Chakrabarti, this is a false dichotomy: “Would you ask an enslaved person to choose between freedom from bondage or freedom from starvation?” she asks, explaining that both “freedom” and “equality”, taken in isolation, are the wrong starting points. She quotes the American philosopher Ronald Dworkin (“for me, the most inspiring philosopher”): the root of freedom, equality, human rights, even democracy is the same – dignity. Democracy and human rights (from which flow both freedom and equality) organise society on the basis of our shared equal dignity, she believes.
We’re meeting to talk about Chakrabarti’s new book (her third): Human Rights: The Case for the Defence. It’s highly persuasive. Chakrabarti simultaneously makes the positive case for human rights in a way that most politicians seem too scared to do, and demonstrates how human-rights thinking can help address many of our most pressing problems. Threats such as climate change and international conflict are, ultimately, violations of the dignity that underpins human rights.
The week before our interview, the Telegraph ran front pages disparaging the European Convention on Human Rights (ECHR). One claimed: “Deported Albanian sneaks back into the UK – uses ECHR to stay”; another stated: “Albanian murderer wins right to stay in the UK under ECHR”. Both stories were misleading. In the first, the case turned on the rights of an English child, not a “deported Albanian”, and the court ordered that the boy’s father should remain in the UK so the child could grow up with two parents. The second story didn’t involve a “murderer” at all but a man whom the British courts had found wrongly convicted. The timing of this interview seems inauspicious, I observe when we meet. Chakrabarti agrees. Leaving the ECHR has replaced Brexit as the holy grail of the right. Human rights are in dire need of defence.
For Chakrabarti, descent towards anti-rights hysteria was inevitable once the Leave campaign embraced xenophobia (and both Conservative and Labour leaderships embraced Brexit). With a significant section of the political spectrum basing their electoral offering around hatred of minorities, it was only a matter of time before they came for the ECHR, she observes. “It’s not really about the EU or the Council of Europe, it’s about making political capital from weaponising xenophobia and fear of the other.” The populist right’s hunger to “take back control” will never (and can never) be sated, she tells me. After human rights, they’ll turn to something else. “Really,” says Chakrabarti, “this is an attack on the rule of law”. Beneath the chest of every populist beats the heart of an authoritarian.
Chakrabarti’s analysis is undeniably penetrating. It seems, however, to sit uneasily with the tone of her book. She writes as if critics of human rights were simply making an argument in an academic seminar, engaging with their critiques in good faith and on the assumption that they are made on the same terms. It’s a nice fantasy and makes for prose that is (like Chakrabarti herself) persuasive and measured. But is it realistic? The populist right aren’t humane philosophers who simply take a different route to perfecting our democracy. Surely, as the Telegraph pieces show, we should be treating them as liars, not serious participants in the discourse?
Chakrabarti disagrees. She saw the current anti-ECHR discourse coming years ago and started writing this book in 2020. She spent much of lockdown immersing herself in the academic literature on human rights and observed that many of the ECHR’s most persuasive critics came from the political left, critiquing the ECHR as an obstruction to progressive causes. Marxist academics, for example, see the human rights system as empowering a legal and judicial profession still dominated by the privileged. These arguments may have been bastardised by the populist right (Chakrabarti acknowledges that many of today’s leading advocates for leaving the ECHR could be accused of bad faith), but she believes they were often originally made with the best intentions.
It’s not really about the EU or the Council of Europe, it’s about making political capital from weaponising xenophobia and fear of the other
Does she find the left’s critique of human rights persuasive? She is, after all, often identified with the left of the Labour Party (she served as shadow attorney general under Jeremy Corbyn). Chakrabarti tells me that democracy must trump politics. She supports higher public spending, for example, but recognises that democracy must make space for those who disagree. She praises Saida Warsi (with whom she is good friends) as an example of a Conservative with whom she disagrees on the economy, but agrees on the democratic fundamentals. Human rights, she argues, aren’t “left-wing” or “right-wing”. They’re the basic premise that we must accept if we are to live in a pluralistic society. Defending human rights means respecting their universality, even if they stand in the way of some policies with which she might agree. The universality of its central argument has won Human Rights praise from across the political spectrum. The cover boasts quotes from some of the left’s doughtiest advocates, but also praise from arch-Thatcherite, Andrew Roberts.
Our conversation keeps coming back to the same point: the inversion of freedom to justify oppression. Nowhere is this more prevalent than the tech sector. In the book, Chakrabarti quotes John Perry Barlow, one of the first (self-styled) “cyber libertarians”:
“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new homeof Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You haveno sovereignty where we gather.”
It may sound like a teenager’s Reddit rant, but today “tech bros” have embraced Barlow’s rhetoric. In reality, says Chakrabarti, the tech boom is just 21st-century colonialism. The internet is like “a newly discovered continent: a modern Wild West.” Its pioneers grab territory with the zeal of the most rapacious land baron. Yet the sheriff is missing in action. Governments across the globe have ceded the territory to multinational corporations and seem content to let empire-building tech bros play Clive and Rhodes.
Is this really new? Surely craven politicians have been genuflecting to the titans of industry since “industry” was invented? Not so, she says. The rush for AI is the “privatisation of the law itself”.
Governments increasingly embrace automated decision-making to discharge public functions. Tech companies design algorithms to make the decisions that would otherwise be taken by ministers or civil servants. The governments then give the tech companies citizens’ data, and the company feeds it into the algorithm. Here’s the catch: the algorithm is secret, protected by intellectual property law. In essence, the government puts data into a black box and then imposes whatever comes out onto citizens. It means that decisions that would normally be taken in accordance with the process set down in law (and therefore open to the public to inspect), are now taken by robots applying a secret mechanism.
Chakrabarti gives the example of live facial recognition (LFR). This works through CCTV cameras. The live pictures are monitored by an algorithm which maps the faces of everyone caught on camera. It then checks the faces against a “watchlist” and alerts the police whenever someone on the “watchlist” is identified. LFR is already in use by South Wales Police and the Metropolitan Police. She points out that this is, by any definition, a police power: effectively an ongoing stakeout on a massive scale. Such powers are usually highly regulated because they interfere with the privacy, safety and liberty of citizens. The law sets clear safeguards for police surveillance, searches and arrests, so the innocent are not unduly oppressed and the guilty are treated fairly.
Live facial recognition has none of these safeguards. There is no prescription in law for who goes on the watchlist (is it wanted criminals? Spies? Peaceful protestors?) or how the algorithm decides if someone’s face matches. It’s all decided by a secret algorithm. Tech companies have, in effect, been given the power to write law for themselves. Unlike the law made by parliament, we have no say.
The algorithms that govern our lives all too easily adopt the worst forms of human discrimination and oppression. COMPAS, the algorithm used by police, parole officers and even judges in the US to predict re-offending, is twice as likely to (incorrectly) predict that some will reoffend if they’re black. Chakrabarti’s book tells the story of a researcher who discovered that certain facial recognition technology used in the public sector would only register her presence when she wore a white mask. Without a statutory scheme it’s impossible to hold algorithmic decision-making to account, she says: the government has simultaneously opened the door to racist robots and insulated them from any real accountability.
At this point my lawyer’s hackles rise. I point out that I have personally argued cases in which courts approved the CCTV surveillance of public spaces. I relied on Part 3 of the Data Protection Act 2018 (which governs the use of personal data for law enforcement processes). Chakrabarti responds that it’s a case of horses for courses. The Data Protection Act is designed for a pre-AI age, she tells me. “As a lawyer, you have to use the tools available to you, but that doesn’t mean they’re the right tools.” She compares the Data Protection Act to another police statute. The Police and Criminal Evidence Act (originally passed by the Thatcher government in 1984) regulates how police must use their powers and ensures they do so in a manner that respects fundamental rights. “If PACE didn’t exist, then you could use the Human Rights Act to regulate police powers, but it would be a blunt instrument.” The threat posed by the misuse of police powers merits a specialised and precise regulatory scheme. The same is true of the new generation of AI, particularly when it’s used to exercise the power of the state.
It’s the job of lawyers to advise ministers on the law and help them make the best decision, regardless of their political affiliation
Chakrabarti is a Labour peer, and we have a Labour government. Are her party colleagues up to the challenge? I point out that Labour talked tough in opposition, promising to replace the Conservatives’ voluntary codes with a statutory regime and force tech companies to share test data with regulators. But in government the party seems to have executed a volte face, scaling down the AI Safety Institute and appointing Matt Clifford to develop a new strategy. Clifford is a tech investor, known for organising the 2023 Online Safety Summit under Rishi Sunak. The former prime minister conducted a fawning interview with Elon Musk and promised one of the most “hands-off” regulatory regimes in the world. And on the day Chakrabarti and I meet, Open Democracy reveals that another senior Labour advisor, who has co-chaired Clifford’s meetings with the industry, retains millions in investment in the sector. So, I ask her, can we trust the new government to step up?
Chakrabarti’s answer is powerful, albeit not entirely direct. Parliament must grasp the nettle, she says. “Parliament is the legislature, and the government should answer to parliament.” She would like to see legislators do their job, suggesting, for instance, that algorithms which make decisions about the rights of citizens should be published in the schedules to legislation. If legislators are unwilling, then citizens must take matters into our own hands. Chakrabarti embraces strategic litigation. She points to the success of the Klimaseniorinnen case in the European Court of Human Rights. The court recognised that the Swiss government’s failure to live up to its international obligations on climate change had breached the fundamental rights of its citizens. She believes this stands as an example of how ordinary people can use human rights law to protect their rights from new threats.
It all comes back to dignity: “The fact that I’m in the House of Lords, that I’m here talking with you about these things, so much of it is down to luck or coincidence – we happened to be born in the right place at the right time.” But accident of birth must not, she says, determine our value as people. Dignity is something we are born with, no matter when or where we are born. Rights protect dignity and the justice system makes rights real.
When it comes to the debate between populists and human rights defenders, is the real disagreement about dignity? Chakrabarti thinks it might be. “Politicians and the wealthy ‘lawyer up’ all the time to protect their rights, no one accuses the people who represent the powerful of being ‘activist lawyers’. But that charge is always levelled against those who represent the marginalised. That seems hypocritical unless you believe that people aren’t basically equal. Some are more entitled to the protection of the law than others.”
The poet Lemn Sissay, reviewing Human Rights, wrote “I would follow this woman to the end of the earth”. I doubt he’s the only one.
Sam Fowles is a barrister, Director of the ICDR, and a lecturer at St Edmund Hall, Oxford. He tweets at @SamFowles
