Statutes and liberty
4 February 2002
Shami Chakrabarti's timing of her arrival at Liberty was immaculate. She made her move from the Home Office legal department to the human rights campaigning organisation on 10 September last year.
A day later everything was turned upside down and the group found itself campaigning on issues that it had not considered for a long time, such as the internment sanctioned by the Anti-Terrorism, Crime and Security Bill, which was passed in the wave of fear that swept the world after the destruction in New York.
Liberty was very vocal about its concerns over the bill, which it felt was rushed through Parliament with undue haste. Its briefing of backbenchers helped to bring about the rejection of the section on inciting religious hatred that had comedians up in arms, worried that the likes of Monty Python's The Life of Brian would be made illegal.
"Only one component of that bill is even pretending to be about terrorism," objects Chakrabarti. "Even though this was supposed to be emergency legislation." The group is currently trying to ascertain how many suspected terrorists have been interned under the bill - the Government says eight, Liberty suspects more. But as Chakrabarti claims, it is difficult to know exactly why people are being held - is it under the anti-terrorism measures, or is it for illegal immigration?
Chakrabarti, whose quiet delivery belies the belief that she obviously has in what she is doing, left the Government legal system because the usual career path within the civil service would have led her away from the Human Rights Act implementation work that she was doing. Sorting out fishing quotas did not appeal, so she moved to Liberty, where she has become its first in-house counsel. It was a move that raised a few eyebrows among the public law fraternity.
That area of law has always appealed - she did her pupillage at specialist public law set 39 Essex Street, which has now provided the junior for the Diane Pretty case, Fenella Morris.
"As a political creature, I've never been someone who's very good at understanding the economics," explains Chakrabarti. "I could never get that argument that if you cut the cake into equal portions, it becomes smaller. How could it get smaller?
"My political consciousness has always been about the relationship between the individual and the state. I know why I didn't like hanging long before I knew what I thought about nationalised industries."
By joining Liberty, Chakrabarti not only gets a chance to try to shape legislation through the group's lobbying efforts, but also keeps up her legal skills on the 30 or so cases that are on the books at any one time. Helping her out is a seconded trainee from Linklaters - Clifford Chance has also provided one - and Chakrabarti is currently negotiating with another top firm to set up a third placement. It is the generosity of these loans, together with the Lawyers for Liberty membership scheme, that enables the body to keep going.
One of the group's cases has caught the public's imagination in a big way: the Diane Pretty case, in which a woman devastated by Motor Neurone Disease is fighting for the right to die. Unable to take her own life because of her condition, Pretty asked the courts to grant immunity to her husband to assist in her suicide. Last November she lost her appeal at the House of Lords, where Liberty argued on her behalf that by denying the right for her to choose the timing and nature of her death, the Director of Public Prosecutions was infringing the Human Rights Act, namely Articles 3 and 8: the prohibition of torture and the right to respect for a private and family life.
Now Liberty is taking the case to Strasbourg and the European Court of Human Rights. Once there, the emphasis will change, as the case will no longer be about challenging the Director of Public Prosecutions to give immunity, but arguing that the Government is failing in its duties to Pretty under human rights law. If it wins, then the Government will be forced to introduce legislation to remedy the failing. It is, Chakrabarti seems to tacitly accept, a long shot.
Asked whether she is optimistic about the chances of winning the case, Chakrabarti is not exactly Tyson-esque. "There's no question that this is a novel case," she says. "There's also no question that the European Court of Human Rights is an international court that has to keep a number of European countries happy, and in most European countries there's not the sort of legal scheme to help people like Diane Pretty."
Persuading a court that covers a range of countries - from the liberal Netherlands, where euthanasia has just been legalised, to countries such as Ireland, where the Catholic church and its teachings still have a strong hold over social morality - is not going to be easy. And I think Chakrabarti has mentally prepared herself to lose.
While the Prettys have fought their tragic battle in front of the media, there are few watching who are entirely certain of their own feelings on the matter. A case that could be black and white on paper becomes labyrinthine in the flesh; and added to that confusion is the ubiquitous fear of one day being in that situation or seeing someone we love consumed in front of us.
Which is, believes Chakrabarti, the power of the case and why she hopes that it may change our views of the Human Rights Act.
"The disappointment about the Human Rights Act is that not enough was done to bed it down in society and culture," she says. "Most people outside the law don't know about it, most school children couldn't tell you about it. But if you watch an American film, even quite a populist blockbuster, there'd be criminals quoting the fifth [amendment of the constitution]. That's what we want, rather than an instrument owned by lawyers."
The Pretty case has, in Chakrabarti's words, brought "those who read the tabloids rather than the Guardian set" into contact with the Human Rights Act, and in terms of public relations, the much maligned legislation is invaluable.
Does Chakrabarti find the case personally difficult to square?
"I don't find it any more difficult as a subject than any others," she answers. "It involves law and politics and
morality and social issues. This isn't black letter law; that's why I like to practise in this area, where you're not bound by precedent all the time, but are actually thinking about real problems for real people, looking for balance and social solutions."
The first thing that Chakrabarti did upon taking the case was to visit the Prettys to be absolutely certain that it was Diane Pretty who wanted to fight the case and wanted to die. She came away with no doubts.
"Mrs Pretty is very firm in her convictions and it was definitely her behind this case with the support of her husband," Chakrabarti emphasises. "I was advising her and taking instructions from her. I'd expected it to be a very depressing visit, but I came away uplifted by the relationship the two of them have. It made you think again about your own family and relationships, that even when things are so grim at the end of life, family can be such a positive thing."
These words are even more poignant because Chakrabarti is heavily pregnant. "There's so much laughter in that house," she adds.
While I have no doubt that Chakrabarti believes in what she is helping Pretty to fight for, she ducks the question of what legislation she would like to see put in place if Pretty wins her case.
She keeps reiterating that this case is unique because Pretty's wishes are easily discernible and also because it is clear that all that stands in the way of her suicide is her body letting her down.
Arguably, it is an easy case, but how do you change legislation to allow for one individual in a unique situation? All Chakrabarti will say is that, should the Prettys win, she will be glad to no longer be at the Home Office.