Human Rights and the Two-Way Mirror

How and why the human rights lobby fails

It is clear that the Human Rights Act is a document that is profoundly subversive of the partisan national interest.

Conor Gearty

The topography of public life in Britain is dominated by a gulf of almost complete ignorance that cuts through the middle of the landscape. But the division does not affect the two segments of the population in the same way. To reach for a different metaphor, society can be imagined to be divided into two groups in a room split in half by a two-way mirror. Those gathered on one side of the divide, the light side, can only see one another and their own reflections. Those gathered on the other, darker side see everything, albeit in a much dimmer light.

The two-way mirror is largely a product of education, but it works in the opposite way to that which one might expect. The more educated one is, the more likely one is to be in the side of the room where only the mirror is visible. Something about the higher education experience, particularly at the very prestigious end of the spectrum, causes one to become blind to anything except the concerns of one’s class and one’s values. One does not really see the people on the other side of the room, although one is vaguely aware that they exist; one rather gleans one’s information about them chiefly by gazing upon one’s own reflection and drawing whatever inferences one can about human nature accordingly.

Less educated people, on the other hand, tend to be able to see the bigger picture - they can look through the mirror, which to them is merely glass. Although they dwell in darkness, they can see those on the other side of the room for what they really are. And they therefore generally have a much more accurate understanding of the character of the people who are notionally ‘in charge’. The unprivileged, that is, can see the privileged and know them intimately; the privileged know the unprivileged, on the other hand, in the same way that you or I know about the lives of the people of the highlands of New Guinea - we know they exist, but our lay understanding of their predicament largely derives from guesswork based on what we think we would feel if put in their place.

This gives all of politics a patina of contempt. The privileged, highly educated and credentialled elite see the world as an extension of themselves. This leads them to take strange intellectual flights of fancy and draw batty conclusions about what good policy looks like. And when, as is inevitably the case, they find themselves blindsided by events, they become embittered and angry. The unprivileged, ordinary people, meanwhile, look upon these people aghast; they cannot quite believe that the people who are supposed to know what they are talking about are as frankly silly as they are.

We see the results of this everywhere, but it is nowhere more obvious than in respect of the Human Rights Act 1998 and, more broadly, the issue of the UK being party to the European Convention on Human Rights. The privileged people, the people in the lighter half of the room, are convinced that history is essentially progressive (by which they mean that it actualises their own values), that human rights are synonymous with progressive politics, and that while there are some nasty elements at the fringes of British society who seek to challenge this fundamental feature of our constitutional arrangements, those people will ultimately fall to the wayside in the march towards the future. The privileged look around at themselves and each other and see jolly decent, nice people, and they think that ‘current thing’ bourgeois loveliness is the ultimate end of the human experience - it is in everybody’s heart, deep down inside, and is just waiting to be set free.

The unprivileged people, meanwhile, also know that it is all over bar the shouting, but in an entirely different sense. They know that it is an inevitability that the UK will, in the parlance of the time, ‘leave’ the European Convention on Human Rights (ECHR), likely by 2030, or at least replace the Human Rights Act 1998 with a vestigial Bill of Rights that allows substantial divergence from the jurisprudence of the European Court of Human Rights. And they know that the human rights lobby - by which I mean the ecosystem of charities, barristers’ chambers and academics who agitate for human rights causes - will in due course be forced to confront the truth, which is that law in modernity is ultimately a site of political conflict and that human rights law is no exception. It will in the end be made subject to political realities, and politics is ultimately not progressive.

‘An erosion of trust in the rule of law’

I was reflecting on all of this when reading a recent report issued by a group of researchers at Oxford University’s Bonavero Institute of Human Rights, a research institute within the Faculty of Law. Titled ‘The European Convention on Human Rights and Immigration Control in the UK: Informing the Public Debate’, this worthy document attempts to dispel various ‘misconceptions’ and ‘misunderstandings’ that have arisen concerning human rights and immigration matters, chiefly at the hands of journalists and politicians who perpetuate a ‘misconceived representation of human rights law and its application in specific cases’. This, the report warns, serves to ‘obfuscate’ the truth, ‘undermines public confidence in the legal system and legal processes’, and ‘leads to an erosion of trust in the rule of law’. And the authors aim to remedy this with ‘accurate data and a sound understanding of legal frameworks and cases’.

Let me say from the outset that there is of course nothing exactly wrong with the Bonavero Institute of Human Rights doing work of this kind, as clearly politically motivated as it is. (The report was not dreamed up by accident or out of serendipity but because the authors wished to defend a body of law which they consider to be worth defending; their own bias is obvious.) But it is, nonetheless, very badly misconceived. And this is because it is founded on a total misunderstanding of what it is that ordinary people object to in the existence of human rights law in general, and its impact in respect of immigration specifically.

That is, to the majority of the population, human rights law has come to represent a set of values that are fundamentally distasteful. And when the human rights lobby - we can include the Bonavero Institute of Human Rights in this - is seen to defend it, all this serves to do is to cement an association with those unwanted values. In other words, the report seeks to defend human rights law with ‘accurate data and a sound understanding of legal frameworks and cases’. But human beings (the report’s authors included) do not come to their political positions on the basis of accuracy of data; they derive their politics from their own values. All that the report then serves to do is situate the Bonavero Institute on a particular side in a dispute precisely about values - a side which is rapidly being revealed to have already lost the argument.

Allow me to explain. The report consists, for the most part, in a set of rebuttals and clarifications designed to set the record straight in regard to the role which the ECHR plays in regulating immigration and asylum in Britain. Here, it presents the media as giving a distorted view of what actually happens, by:

1. Reporting results of immigration tribunal cases which have already been overturned on appeal (usually by the Upper Tribunal).

2. Reporting arguments made by legal representatives in tribunal cases as though they were part of the judgment.

3. Presenting certain features of cases as decisive when in fact they were of minor importance.

And here, Exhibit A, as it were, is the now-infamous ‘chicken nugget’ case from earlier this year, in which a First-Tier Tribunal judge decided that an Albanian money-launderer could remain in the UK on the grounds that it would be ‘unduly harsh’ on his son to deport him, and hence a violation of said son’s right to a family life pursuant to Article 8 of the ECHR.

This case was widely reported as hinging on the fact that the son did not like foreign chicken nuggets, with the result being the obvious headline: ‘Albanian criminal’s deportation halted over son’s distaste for chicken nuggets’. And, according to the Bonavero Institute report, this was evidence of the way in which misleading accounts of immigration tribunal decisions distort public debate in a dangerous way. In fact (acshually), although the First-Tier Tribunal had found in favour of the claimant in the case in question, the decision had been overturned after an appeal by the Home Office, and the claimant (we can assume) was duly deported. And in any case the chicken nugget issue, in the Bonavero report’s account, had only been a relatively minor detail.

Other cases are mentioned too, but in gist the report largely follows this pattern, demonstrating that media reporting, and statements by politicians, do not accord with the reality - which is that actually it is fairly rare for human rights law to be the decisive factor in a refusal of a deportation order. And the report goes on (somewhat tendentiously; I will come to this in a moment) to publish data demonstrating that between 2016 and 2021 ‘only’ 922 foreign national offenders successfully challenged deportation on human rights grounds, whereas 26,091 were deported - suggesting that the number of successful appeals was ‘only’ 3.5% of the number of deportations.

Some readers may have already formed in their minds the view that this is 922 foreign national offenders too many. But in any case the report ends with a finger-wagging, tut-tutting conclusion:

[M]isleading claims about the UK’s immigration appeals system and the ECHR are continuing to engender misunderstandings of the role of the ECHR. While commentators may hold different views on matters of human rights and immigration, it is vital that public debate is based upon accurate data and a sound understanding of the law and its application in specific cases.

There are things to quibble over here, of course. I confess to sharing the authors’ irritation at some of the inaccuracies of the reporting on human rights and immigration matters in the Tory press, but it has to be said that the ‘chicken nuggets case’ really did in a sense hinge on the fact that the claimant’s son ‘will not eat the type of chicken nuggets that are available abroad’, as this was the sole piece of evidence given to the First-Tier Tribunal as to why, if the claimant was deported, his son could not accompany him. And on that basis - the fact that the son could not leave Britain because he would not like the chicken nuggets available - the judge had initially ruled that it would be ‘unduly harsh’ to deport the father (it otherwise being the case that his family could go with him). And while it is true that the Upper Tribunal overturned this decision on appeal, it is still in my view perfectly legitimate for the press to publish the story, because it is clearly in the public interest that First-Tier Tribunal decisions are being made on such flimsy and, let’s face it, stupid argumentation as this case was.

It is also important to emphasise that the date range selected by the authors (although I think they were hampered by the availability of data) may itself have produced misleading results. There was a lot of immigration into the country between 2016-2021, but that period preceded both the ‘Boriswave’ of vastly inflated legal net migration figures (going from around 250,000 in the year ending June 2021 to around 900,000 in the year ending June 2023) and the huge increase in ‘small boat’ crossings that has taken place since 2021 - both of which will have brought with them increased numbers of criminal offences committed by non-nationals, and thus an increase in deportations and likely an increase in human rights claims.

And, finally on this note, it is also important to point out that in the public imagination ‘illegal entry’ to the UK, especially from the perfectly safe territory of France, should itself be considered an unlawful act, even if it is not permitted to be interpreted that way by UK courts. And given that a large proportion of ‘small boats’ arrivals remain in the country on human rights grounds (99% of Sudanese, 99% of Syrian, 99% of Eritrean, 96% of Afghan and 87% of Iranian asylum-seekers coming to the UK were ultimately granted ‘asylum or other leave’ between 2021-2023) - typically because returning them to their country of origin would qualify as inhuman or degrading treatment or punishment in contravention of Article 3 of the ECHR - then conceptually at least it is arguable that their number should be included in the account.

Human rights between the city and the flock

But pointing all of this out is itself rather beside the point, which is that none of the content of the report actually matters. It doesn’t matter because few will read it. But it also doesn’t matter because, to repeat myself, nobody - not the public at large, not politicians, not the tabloid presses, not even the wonderful people at the Bonavero Institute - makes up their minds about whether they like human rights law on the basis of ‘accurate data and a sound understanding of the law and its application in specific cases’. They like, or dislike, it on the basis of what it symbolises and the values which it is seen to embody.

And, in turn, what it symbolises derives from its relationship to the central political dispute of our age, which is the grounds of authority itself. In a previous post, I described how Michel Foucault identified in early modernity a shift away from an interest in land and territory to an interest in the population as the ruler’s ‘field of action’. Prior to that period, a ruler participated chiefly in what Foucault called the ‘city-citizen’ game. The job of the sovereign was to secure the unity between people and land through maintaining a spatial, territorial order, which defined who was a citizen and who was not, and allocated rights and duties accordingly. And this - connected to an understanding that this arrangement itself mirrored a cosmic order of some kind - was the basis for sovereign authority.

But with the Scientific Revolution came the gradual discovery, accelerating after the development of the science of statistics, that the population was itself a natural phenomenon whose qualities could be manipulated and managed. It became a ‘thing’ that had a literacy rate, a poverty rate, a growth rate, a suicide rate, and so on. This ushered in a new era in which the ‘shepherd-flock’ game became prominent. Here, the sovereign gained the ambition to maximise the health and wellbeing of the population (both physical and moral or spiritual) so as to strengthen his own status and the political structures which sustained him. He of course maintained a territory too - the city-citizen game did not cease to be played - but from that point onwards his governing of the people, rather than the security of the city wall, would increasingly take centre stage.

This has particular significance for the understanding of law, and particularly of rights. Regular readers may recall that I previously summarised some of Carl Schmitt’s writings on nomos in order to draw attention to this point. In The Nomos of the Earth, Schmitt describes a legal order as being fundamentally spatial. As I put it in that previous post:

The Ancient Greeks had a number of different words that we translate as ‘law’, but nomos is the most significant for Schmitt because of its roots. The verb from which nomos derives is nemein, which has the meaning of distribution, or apportionment. And nomos, as well as meaning law or custom, could also mean a pasture, a field, a district or province, or a range. As well as being suggestive of a legal order, in other words, nomos was also suggestive of, almost literally, ‘allotment’ in the sense both of allocation in general, and of land in particular…And it had also therefore the connotation of things being in their proper place - given their share and arranged, physically, as they ought to be.

Law was not, then, merely a set of rules that the sovereign happened to make as he saw fit. Schmitt dismissed that as mere ‘normativism’. Rather, law and place were tied together:

There was a unity between ‘order and orientation’. Law simultaneously arranged the physical world through ‘allotment’. But at the same time it sprang from and was ‘nourished’ by the land itself. Order was founded, that is, on the appropriation of a parcel of land, and on a claim to territorial control - and it was in that moment that both law and ‘orientation’ came together to be identified as one. The place, which is to say the physical territory of the polity, and the law, had the same, and a simultaneous, origin. And they therefore gave one another effect: the law ordered the territory, and the territory was that from which order was born and sustained.

Law, in other words, arises from a unity between a certain people who live in a territory and that territory itself - it can be thought of, crudely, as the customs which they develop by dint of having a settled way of life within a particular area of land, given form and force through the actions of the sovereign, who may legitimately exercise violence in order to make it effective. And the sovereign’s chief duty is to maintain the integrity of the spatial order in question, by vigorously protecting the border, the city wall, within which that settled way of life can go on. The citizens are the citizens because they dwell inside; those without are outsiders who are not governed by its law.

This has particular connotations for the meaning of right, of course, because it is suggestive (as Hannah Arendt was wont to point out) that rights - like duties - arise through citizenship. It is the citizens of a state, those who dwell legitimately within the territory, who have rights guaranteed by law, because it is they who are permitted to circulate freely as friends and compatriots within the spatial order. Rights do not derive from the abstract concept of humanity but precisely from the fact that there is a unity between land, people and State that is created and sustained by the law - the nomos - which arises from and governs that unity.

This understanding of rights - the city-citizen conceptualisation of rights - can be contrasted with that set out by Thomas Hobbes. For Hobbes, all men had equal rights in the abstract, because men in the abstract exist in a state of nature. In the state of nature, nothing limits men’s rights except their natural capacity to get whatever it is they desire. Their natural rights are therefore absolute. This will result in a free-for-all - the famous war of all against all - unless the sovereign emerges as a ‘common power’ to keep them in check. And the sovereign’s duty, therefore, is by no means just to maintain the territorial integrity of the State, but rather also to act as a governing power to reconcile the conflicts which arise between a great mass of autonomous individuals all striving for their own ‘felicity’ against everybody else through attempting to realise essentially infinite natural rights.

For Hobbes, then, the sovereign’s job is really to use law in order to manage interpersonal relationships. And this places law on a personal, rather than a territorial, footing. It goes from being an ordering of customs emerging from a settled way of life among a people living within a particular territory, to a means of sovereign command wherein natural rights - the rights of everybody to everything - are constrained, managed, and traded-off against one another. And this in turn grounds the authority of the sovereign in his relationship to the population rather than the land and the nomos which it sustains. His authority derives from an appeal to the people themselves, based in reason and not spatial order.

The result of this is what Leo Strauss called ‘political hedonism’, a subject which I have written about before; the job of the ruler becomes satisfying the population’s needs and wants (or at least those of as large a chunk of the population as possible) because it is his relationship to them which is the justification for his position. He rules not because he maintains the integrity of the spatial order by enforcing a particular legal system deriving from nomos, but because he always has a plausible account to give to the population that he is the best equipped to manage their interpersonal rivalries and to meet their material needs.

Human rights and the grounds of authority

What we can see here, then, is that political modernity is characterised by two very distinctive understandings of the constitutional importance of rights. On the one hand, in the city-citizen conception, rights derive precisely from citizenship - they are entitlements which a citizen has within the city walls as a corollary of his responsibilities as a member of the in-group. They are what facilitate the free circulation of compatriots, and give effect to customary, social expectations about what the State may, or may not, legitimately do.

On the other hand, in the (Hobbesian) shepherd-flock conception, rights derive from humanity as such. They are natural and abstracted from citizenship; they are indeed fundamental to ‘man’. And here rights have the function of rationalising the existence of the State. Rights are universal and unbounded, and the State’s task is to reconcile and manage the inevitable conflicts that will result. Here, rights form part of what Foucault (again) labelled the task of ‘constant modulation’ which the modern State performs on the population, conceived as its flock - ensuring that each and every member is adequately cared for, and micromanaging their every movement in order to achieve this.

It will be immediately seen that immigration is an obvious fault line that divides these two conceptions of rights ineluctably. Are rights fundamental to ‘man’? Are they abstract universals which we each possess and which must all be carefully traded-off against one another? Or are they simply features of belonging to a particular national community which derive from customary, shared understandings of the limits on the sovereign’s power? If the former, then anybody who happens to arrive in the jurisdiction by whatever means is immediately a rights-bearer; if the latter, then fair treatment may (and should) be extended as a matter of comity but not of right. And these two understandings are not reconcilable - it must be one or the other.

It will also be seen that these understandings of human rights themselves arise from a basic disagreement about the appropriate grounds of authority. Are those grounds to be found within the rubric of the city-citizen game, from the unity of territory, people and State bound together by law? Or are they to be found within the rubric of the shepherd-flock game, from the transactional logic of political hedonism within which the State’s authority emerges from its purported ability to satisfy wants and needs?

The location of the Bonavero Institute’s report in this context is obvious. To the authors - as is the case implicitly across the human rights lobby as I earlier described it - the point of the State is to actualise what they see as the correct moral values. And although they do not typically see it in these terms, this is conected to a vision of the State as grounding its authority in a fundamentally benign claim to be managing the ‘flock’ in the optimal way, so as to satisfy the needs and desires of the populace fairly and appropriately. (What is ‘fair and appropriate’ here being the values which well-to-do secular bourgeois people tend to prioritise at any given moment.) From this standpoint mass immigration is at worst a neutral factor and actually in a sense - as I have earlier pointed out - beneficial in that it provides more grist for the managerial mill. The more diverse the population, and the more potential conflict there is between rival interest groups, the more the State as manager-shepherd is needed. Here, mass immigration is part and parcel of the political reason of Statehood in 2025.

To the general public, however, by and large, the point of the State is not (just) to act as a manager but to represent, protect, and enforce a unity that itself reflects the fact that within the British territory there has existed for generations a broadly settled way of life. This way of life has not been ‘settled’ in the sense of being preserved in aspic, but settled in the sense that its evolution across time has been gradual and generally undirected. And in this sense ‘rights’ are understood as part of that settlement - something which citizens (perhaps more accurately, subjects of the Crown) enjoy because they are in fact British.

The people at the Bonavero Institute, fully wedded as they are to the logic of the shepherd-flock game, and locked on the wrong side of the two-way mirror, find this impossible to parse. They imagine their own values to be the product of mere reason. And they are therefore confident that ‘accurate data and a sound understanding of legal frameworks and cases’ will contribute to a change in attitude towards human rights across the piece. They fail to understand that people only ever hold the values they hold because of reason, but reason produces different results in different contexts. And they fail to grasp that their own conceptualisation of the constitutional purpose of human rights is itself both partial and biased, giving effect to a particular vision of authority that is simply not shared by the majority of people.

The truth of the matter, in other words, is that human rights law is political in the deepest sense, in that its content will necessarily reflect decisions that are made about the grounding of authority as such. And this in turn means that human rights law will in the fullness of time be made to conform to the understanding of the grounding of authority which prevails. In a country like the UK this can only eventually have the consequence that human rights law will be made to conform to a vision of authority as being rooted in the reflection and protection of a settled way of life. And in the end rights as such will be necessarily untethered from international and global bodies of law. This will surely happen, and no amount of ‘accurate data and a sound understanding of legal frameworks and cases’ will change it. That the human rights lobby will fail to reconcile themselves to this outcome is sadly also inevitable - and this makes this Substack post in its own way as quixotic a project as the report itself - but that is the result of living life in a room in which all that one can see is the glorious reflection of oneself and one’s peers.