‘The Spy Cops Bill Is One of the Most Dangerous Pieces of Legislation I’ve Seen’

Shami Chakrabarti

Shami Chakrabarti on the dangers of the 'Spy Cops' and Overseas Operations Bills, the Tory culture war against human rights – and why the Labour Party is too scared to stand up to it.

Interview by
Francesca Newton
Ronan Burtenshaw

Last year, the government introduced two bills which generated concern among campaigners and human rights groups. One is the Covert Human Intelligence Sources (Criminal Conduct) Bill, otherwise known as the ‘Spy Cops’ Bill, which allows government bodies to authorise law-breaking by undercover operatives in the UK. The other is the Overseas Operations Bill, which protects members of the armed forces and the Ministry of Defence from prosecution or civil claims for infractions abroad.

Despite these laws representing an attempt by an increasingly authoritarian administration to put itself and its agents above the law, Labour MPs were whipped to abstain on both. Some rebelled, forfeiting jobs as a consequence. But most did not.

One vocal opponent of the bills within the party has been Shami Chakrabarti, Labour peer, ex-director of human rights group Liberty, and Shadow Attorney General under Jeremy Corbyn’s leadership. Last week in the House of Lords she failed in her efforts to amend the ‘Spy Cops’ Bill to prevent the granting of advance immunity – and was subject to negative briefings from sources close to the party’s leadership.

Here, she speaks to Tribune about the political landscape that gave rise to these bills, her fears for the future of the rule of law and democracy – and why trying to beat the Tories in an authoritarian arms race won’t deliver much for the Labour Party.


RB

What is your assessment of the Spy Cops and the Overseas Operations Bills? Could you put into context, for those who might not be experts, what their combined ramifications for human rights at home and abroad might be?

SC

Essentially, these two bills are evil twins with each other. There are elements of overlap, but one is predominantly about over there, and the other one is about over here. What they’re really about is making it much, much harder to hold people to account under the law.

They are both violations, not just of human rights, but of the rule of law itself and that fundamental principle of equality before the law. It’s not even formal equality. It’s not even a left version of equality. It’s not even equal opportunity. It’s equality before the law, which is supposed to be a principle that even conservatives hold.

What these pieces of legislation do is depart from that norm, which is an international and domestic norm that says that whether you are British, or non-British, or French, or non-French, American, or non-American, whether you’re a politician, or a soldier, or a policeman, or an undercover agent, you’re still subject to the rule of law.

These bills are carving out all sorts of exceptions to that vital principle. That should upset any democratic person. What’s happened in America of late should really be a wake-up call to people, and not just people who read Tribune: readers of the Times should be a little bit more excited and animated about this, too, because democracy is fragile. Without the rule of law, there is no civilisation, let alone democracy.

FN

What are the government’s motivations for bringing these bills forward, in your view?

SC

The fundamental motivation, in my view, is a nasty populist culture war. Johnson and his allies have been playing this chord for some time. Whatever your views on Brexit, Johnson—and even before Johnson, Cameron and his allies—have been weaponising human rights as unpatriotic, even traitorous, elitist lawyer tricks: ‘they’re for lawyers and against the police; they’re for lawyers and against the veterans and soldiers; they’re for foreigners and against our people.’

That’s what the Conservatives have been doing for many years, probably since the Human Rights Act itself, if not before. The Human Rights Act is old enough to be a young graduate now, and I’m old enough to have watched and studied its entire infancy, childhood and adolescence: it passed in 1998 and was brought into force in 2000, and now we’re in 2021. From the very start, the Tories were out to get the Human Rights Act and everything it represented.

I believe it to be a wonderful piece of legislation. It was passed under the first Blair government, but the values in it ought to unify not just the Labour Party, but all democratic people in the UK, in Europe, and in the wider world. The Tories, from the very beginning, tried to weaponise it. Unfortunately, at various moments, Labour played into their hands.

When I was director of Liberty, there was language even from Labour ministers about the ‘gravy train of legal aid’, about BMW-driving lawyers. These are legal aid lawyers, not City lawyers. Legal aid lawyers are half social worker and half benefits advisor. They’re dealing with poor people, lower middle-class people. The problem is the combination of this anti-lawyer, anti-law, anti-human rights rhetoric with the decimation of legal aid, which was contributed to, I’m sorry to say, by governments of both persuasions.

The process was started by Labour and accelerated by the Tory-Lib Dem coalition. It meant that ordinary British people of all backgrounds were watching a Human Rights Act story in the context of the War on Terror that was all about foreigners, terrorists, and refugees. It was never taxi drivers and hairdressers getting human rights, because the inaccessibility of legal aid meant they could never get access to justice.

This Human Rights Act narrative has now been going on for more than 22 years. Part of that narrative was always anti-European because the Tory right-wing nationalistic narrative was partly about Europe, partly about human rights. The Johnson wing of the Tory Party was able to use it to achieve a very hard-right, deregulatory Brexit. It secured Johnson the leadership of his party, and a purge of some of the wetter, one-nation Tories.

Now this is their modus operandi. So, of course, they’re going to keep going. Now that a hard-right Brexit is done, they’re going for human rights. This is an appetite that will never be sated. This is what people have to understand. There is no end to it.

In my view, you can’t concede to it. You can’t accept that there’s a problem with human rights, or that human rights belong to some people and not others, or that they’re divisible. Attacking human rights is not just about attacking lawyers or attacking this thing called ‘the Human Rights Act’. As we saw in the War on Terror, it’s about fundamental rights and freedoms in a whole raft of areas of life. The Spy Cops Bill and the Overseas Operations Bill are part of that agenda.

That’s the big picture. The more immediate context to the Spy Cops Bill is a court case brought in good faith by some human rights lawyers and activists saying that the current regime for criminal involvement by undercover agents wasn’t on a statutory footing and, therefore, wasn’t lawful. All I would say about that is: be careful what you wish for. You think that this is a smart piece of litigation, but actually, that was the short-term trigger for the Spy Cops Bill. The government comes along and says, ‘Well, there’s this litigation, we’ve won it in the first instance, but we might lose it on appeal. So we now must legislate, because otherwise these undercover agents will be in jeopardy.’

Of course, when you’re undercover in a terrorist cell or in a criminal ring, there are some offences you’d have to commit to keep your cover, like being a member of a proscribed organisation or possibly being in possession of drugs. The status quo was that you’d get some guidance about doing that. You don’t get immunity, you get guidance, and after the fact, if you’re investigated or accused of an offence, you’ll be able to reveal that you were undercover. The fact that you’ve acted consistently with the guidance is going to protect you in the public interest.

Instead of legislating for that status quo, the government went further: total advance immunity from prosecution. We don’t give that to uniformed firefighters, police officers, ambulance drivers. We’re not supposed to give that to politicians. Look at what’s happening in America, where you get to dish out immunity as the executive. Now, as a parliament, we have allowed total advance immunity to agents of the state. It’s a very large number, not just MI5 and MI6 or even the police, but all sorts of other agencies. We’ve let that happen on our watch.

FN

You suggested amendments to the bill in the House of Lords, trying to give statutory basis to that previous status quo rather than allowing for advance immunity. Did you expect the criticism these received, even from your own side?

SC

I was trying to play it in good faith. Some people say we need to legislate because there’s this litigation and we don’t currently have authority for what’s done undercover in the public interest. So I said, fine, I’m going to table an amendment that replaces this total immunity with, effectively, a public interest defence, which is closer to the status quo, but on a statutory footing. The major amendment that I tabled and pressed a week ago was to do that.

And that was when I was briefed against [by Labour sources in the Guardian] and accused of being factional. The idea that I’ve just discovered human rights as a means of being factional in the Labour Party is a very strange argument to me.

It’s one thing to say, ‘Who the hell does she think she is to be in the Labour Party? She only joined the Labour Party a few years ago. Before that she was a non-party human rights lawyer. She’s Johnny-Come-Lately.’ Those are fair criticisms. But even my worst Tory press enemies – would they say that I’ve just discovered human rights in order to engage in factional nonsense in the Labour Party? I don’t think so.

FN

Labour’s abstentions on this bill, and the briefing against you in the Guardian – what do they say about the commitment to civil liberties we could expect from a Starmer administration? And about attitudes towards human rights that exist in the Labour Party at present?

SC

I don’t know. I’m obviously very disappointed and concerned – mostly disappointed and concerned because that piece of legislation is one of the most dangerous that I’ve ever seen. I fought against 90 days and 42 days [in detention without trial] and ID cards and practices like extraordinary rendition. But to give that kind of total advance immunity to undercover agents of the state is terrifying to me.

We’ve now got the Overseas Operations Bill coming to the Lords on Wednesday. I guess we’ll see what approach is taken by people on all sides to that. Very shortly down the track, we’ve got a review of the Human Rights Act itself. And there’s an amendment to the Human Rights Act itself in the Overseas Operations Bill.

In the end, you cannot win a progressive argument by conceding territory of this kind – by conceding that human rights belong to some people and not other people, or by giving the state a get-out. You will never win an authoritarian arms race from the left. Where are you heading with that?

We’ve now got people in the government, like the current Home Secretary, who just a few years ago was on national television supporting the death penalty. This is what we’re dealing with. Whatever your best intentions about becoming a progressive Labour government, let alone a radical one, you cannot win these arguments by conceding that kind of ground.

RB

It’s interesting, the infringements of civil liberties you mentioned—detention without trial, ID cards, extraordinary rendition—all happened under the last Labour government. What do you think it says about our political class that the attacks on human rights are such a bipartisan affair?

SC

That’s true, there are all those things that happened in the War on Terror under a Labour government. Then we got the Coalition government in 2010, which married the Liberals and the Tories on the basis that they were going to be more civil libertarian. The first thing they announced was they were going to do away with ID cards – but then they did their own wicked stuff like secret courts and finishing off the job on legal aid.

What does it teach us about the political class? That absolute power is delightful. It’s very easy to talk a good game on rights and freedoms when you’re in opposition and then just abandon it when you’re in government. They think that somehow ordinary voters and working people don’t notice, or don’t care, or think that rights and freedoms are some elitist or bourgeois endeavour. That’s the sort of message that I’ve heard from your Cummings types, but also from too many people who would call themselves left, or left-leaning, or Labour commentators.

You have to make the argument. You have to demonstrate to people why these rights and freedoms matter, and don’t just matter to terrorists and other people. They matter to everybody.

Compare the NHS. It’s an absolute scandal that the NHS has been so neglected for so many years, and some of the holes in that system have shown up in the pandemic. But even before the pandemic, when people attacked the NHS, they had to do it by stealth. The cuts were mostly hidden, and the privatisation was mostly hidden. A consensus was established: everybody wants to wrap themselves in saving the NHS. That’s because everybody’s connected to it. Everyone’s either born in an NHS hospital, or has given birth, or has visited somebody else, or has been vaccinated, et cetera.

With the law, you don’t know what you’ve got ’til it’s gone. If you’re lucky, most people don’t have a cataclysmic experience that requires going to a lawyer. Increasingly, if you do, you’re not going to get access to a lawyer anyway. It becomes a vicious spiral: ‘I’m the ordinary working person who really could have done with access to justice when my employer was treating me terribly, or when I was made homeless, but there was no law for me. There’s law for these criminals, and terrorists, and refugees, but there was no law for me. So I don’t feel the way about the law that I feel about the NHS, which was there for me, even if only occasionally when I needed it.’

RB

I think there’s a hard question here for the Left. The right-wing populist message, it seems to me, has exploited a hypocrisy that does exist – the idea that Britain is a fundamentally fair society, with institutions that protect against injustice, while real life has been getting harder for so many people for decades. It has been easy for the right-wingers to point to that and say, ‘these people preach a good game but it isn’t really true…’

SC

That’s right. The bottom line is that human rights are indivisible. You need your civil and political rights, your civil liberties, but you also need your social and economic rights. You need to eat. You need to have shelter. Look at people suffering under the pandemic, for instance. They’re told to stay at home. ‘But how am I going to eat if I stay at home, if I’m on a zero-hours contract and there’s no furlough for me?’ That’s a question facing a lot of people today.

But your social and economic rights come alongside your civil liberties: I want to eat, but I don’t want to eat as a slave. I’m entitled to my free speech and my fair trials as well. This is what you need to be a thriving human being.

We also need the bridge between the two of them. In the post-World War II settlement, the bridge between civil liberties and social and economic rights was legal aid – funding for state-funded lawyers. Without legal aid, you don’t get access to justice. You have these beautiful pieces of legislation—the Human Rights Act, the Equality Act, Employment Protection—that look like good law that would protect your rights and your liberties. But because you haven’t got the social and economic access to legal aid, they become an illusion.

So, then, when you’re looking at the people who’ve still got a tiny bit of access to justice—even if it’s in extreme circumstances, like people accused of crime or people about to be deported from the country—you think, ‘Oh, human rights are just for them and not for me.’ That separation between civil and political rights and social and economic rights becomes a way for the Right to say, ‘Civil liberties are elitist nonsense that they give to foreigners, and criminals, but they don’t give to you.’ And then it becomes a vicious circle. You start hating human rights and human rights lawyers, instead of wanting those things for yourself.

It’s classic divide and rule. The majority of people in the country get turned against each other by these gods on Olympus – the same people who are getting richer and richer through the pandemic. The same people who are funding the Tory Party.

FN

Time is now tight until either of these acts potentially become law. What can we, as ordinary people, do to oppose them and to push back against this broader attack on human rights you describe?

SC

People like me, in a way, have already been silenced in this, because human rights lawyers have been demonised. What activists can do is to better explain why this isn’t just fun and games for lawyers. This is part of protecting people’s basic dignity, protecting their voice. They need to be radical and transformative in demanding access to justice and the rule of law.

Some people have said to me, ‘The problem, Shami, is that if you oppose the Spy Cops Bill or the Overseas Operations Bill, the Tories will call you soft on crime, soft on terrorism, unpatriotic.’ What we need to do is to bravely and clearly explain to people why that’s not true.

The Spy Cops Bill undermines the rule of law. It means that the agents of the state will get away with things that ordinary citizens wouldn’t get away with. People were very clear that Dominic Cummings’ trip to Barnard Castle was hypocrisy: it was one law for them and another one for us. The Spy Cops Bill is literally one law for them and another one for us – total immunity authorised administratively by agents of the state. That’s not about fighting crime, that’s about creating crime.

Similarly, with the Overseas Operations Bill, the people who won’t be able to sue the MoD for negligence are overwhelmingly veterans. It’s going to be these veterans who were sent into harm’s way in illegal wars through no fault of their own, who, as a result of the Overseas Operations Bill, will be deprived of access to justice. It’s the opposite of what the government says it is.

The answer is not to run scared, but to call this stuff out. If we run away from these arguments, I don’t see how we can win this arms race. If the argument is that the state has to have better protection than individuals, then that’s not far from a Priti Patel argument for the restoration of the death penalty.

You could try to pretend it isn’t happening, or be silent about it, but that’s where it leads. We’ve seen these horrible things in America in recent years that scared everybody, even in Britain, even in the Conservative Party. But America still has the death penalty. And Joe Biden or Barack Obama haven’t talked about getting rid of it, because that’s just too dangerous in the United States.

This is the climate that can be created if you don’t fight. We could go further down that road, unless we, as a broad coalition of democratic people, say no. We have to believe in the rule of law, and fundamental human rights as part of that.

RB

There was an amendment passed in the Lords to limit authorisation of more serious crimes such as torture and murder under the Spy Cops Bill, is that right?

SC

It was quite limited, but yes. There was an amendment that ruled out some serious crimes. But what I’m nervous about is that was then heralded as some great victory.

RB

So what does it mean for the future if the bill passes without further amendment?

SC

I’ll tell you about my biggest concern – not just for the Left, but for all protest: for the Left, for trade unions, for climate change movements, for Black Lives Matter, for all peaceful dissent movements.

We know that the people currently in power in Britain, and the people who’ve mostly ruled Britain for the last century and longer, consider all of us a real nuisance. We know that peaceful dissent is always subject to infiltration and agents provocateurs. You send undercover agents into a protest movement to behave badly, possibly even violently, to then justify a more brutal and repressive state response.

We know this happened to the hunger marches, for example. It happened at Greenham Common. It probably happened at Peterloo. It always happens as a way of discrediting and undermining peaceful dissent.

One of my biggest fears about this legislation is that, give it another five years, something happens: climate catastrophe becomes even more imminent, and there’s a violent incident that’s then attributed to the green movement. We will never know whether the person who committed that crime—be it a crime against property or people—was an undercover agent with advance immunity, or whether they were put in there to whip it up; even if the people who perpetrated the crime perhaps were genuine members of the movement, were they incited to do it by an undercover agent with immunity? We will never know.

I therefore also tabled an amendment to ban an authorisation of that kind being given for the primary purpose of discrediting an organisation, be it a trade union or the green movement or anybody else. That amendment was not supported by either frontbench in the House of Lords. I never got a good reason why, from anybody. That would have at least put a safeguard in for peaceful dissent and that particular kind of abuse of power – and I was not supported, even on that.

About the Author

Shami Chakrabarti is a Labour peer and human rights lawyer. She previously served as Shadow Attorney General and as the director of Liberty.

About the Interviewer

Francesca Newton is online editor at Tribune.

Ronan Burtenshaw is the editor of Tribune.