Rights the Wrong Way Round

What is so bad about human rights law, after all?

For though they that speak of this subject, use to confound jus, and lex, right and law; yet they ought to be distinguished; because RIGHT, consisteth in liberty to do, or to forbear: whereas LAW, determineth, and bindeth to one of them: so that law, and right, differ as much, as obligation, and liberty; which in one and the same manner are inconsistent.

-Thomas Hobbes

Yesterday morning saw the release of a policy paper, written by Suella Braverman MP (the former Attorney-General and Home Secretary of the United Kingdom) and Guy Dampier of the Prosperity Institute. In it, they set out a blueprint for the UK’s withdrawal from the European Convention on Human Rights. This is the first formal attempt to my knowledge to put a plan for such a project down on paper for people to read, and it is clear that a head of steam is building on the British right in favour of Brexit 2: (No More) Judgment(s) (of the Strasbourg Court) Day. (Sorry.)

I thought this would be a useful opportunity to return to the question of what is so terrible about human rights law in the first place and why I agree, in principle, that no self-respecting British State should touch it with a barge pole. Some months ago, I wrote a post suggesting that human rights law is not really law at all. Here, I would like to argue that, not only is it not law, it serves precisely to create a zone of extra-legal decision-making into which politics will inevitably pour. The minute a rights claim is successfully invoked, law disappears, as if by magic - and the next trick is usually for the role of the legislature itself to be well and truly usurped by the judiciary. This is not just a nitpick or a complaint that human rights law has lost its way, I will argue; it is a feature of the nature of rights as such. And this means that any project of enshrining human rights as such in law is bound to descend into sheer politicisation of the judicial process.

Let me explain through reference to the segment of human rights law that is of greatest public salience, which is Article 8 of the European Convention (ECHR), concerning the right to family life. This is the chief provision that is usually invoked in immigration cases (the other main one being Article 3) to prevent deportation of foreign criminals, on the grounds that it would interfere with some family connection they have with somebody or other in the UK. And it is, by dint of this, probably the most controversial of the ECHR rights, although much of what I will say about it applies across the piece.

The stereotypical illustration of the lunacies to which Article 8 gives rise is nowadays that of Secretary of State for the Home Department v Klevis Disha [2025], a case in which an Albanian criminal was initially spared deportation from the UK on Article 8 grounds by the Immigration & Asylum Chamber of the First Tier Tribunal, because it would be ‘unduly harsh’ on his son. The reasoning behind this was that if Disha was returned to Albania, it would separate him from said son, who would be unable to accompany his father because he ‘will not eat the type of chicken nuggets that are available abroad’.¹

That decision was overturned on appeal, in an outbreak of sanity (although this only resulted in the case being reheard by the First Tier Tribunal). But it is emblematic: cases like it are ten-a-penny, and indefensibly daft decisions have been being made on Article 8 grounds for some years. Readers with good memories may recall ‘catgate’, from 2011, when Theresa May (then Home Secretary) gave a speech in which she reported that a foreign criminal had escaped deportation because he had a pet cat. Though she got the facts a little muddled, and was castigated for it by the human rights lobby and Guardian journalists, there was indeed an immigration case in which a Bolivian shoplifter and visa overstayer successfully fought his deportation partly on the grounds that he and his (British) partner had a cat living with them. This purportedly evidenced the ‘strength and quality’ of their family life, which would have been disproportionately interfered with had the deportation took place.

The proximate jurisprudential explanation for all of this silliness is the elaboration that has taken place over the years, in respect of immigration cases, of a so-called ‘staged approach’ to Article 8 interferences. This began when the famous Lord Bingham ‘identified’ (read: made up) such an approach in a 2004 case, R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27.

The staged approach runs as a series of flow-chart style questions which are designed to guide a judge in determining whether Article 8 will have been violated in respect of an immigration matter. I will reproduce these questions in a moment. First, though, I would like to set you a quick, easy, first-semester-of-first-year undergraduate law task to do as you go read the questions. I want you to see if you can identify the point in the process at which law disappears. You don’t need any specialist knowledge to do this - just a few brain cells applying common sense; this is indeed one of the many circumstances in which being ‘learned in the law’ leads one to very foolish conclusions, and pig ignorance is actually a benefit.

Are you ready? OK, here is the staged process; your job, remember, is to identify the stage at which law is no longer a relevant consideration and disappears down a drainpipe:

1. Does removal (i.e., deportation)² interfere with the exercise of Article 8?

2. If so, is the interference sufficiently serious as to engage the operation of Article 8?

3. If so, is such interference in accordance with the law?

4. If so, is such interference necessary in the public interest?

5. If so, is such interference proportional to the legitimate aim sought to be achieved?

Did you spot the point at which law disappears? Yes, that’s right, it’s at the juncture between stages 3 and 4. Stages 1, 2 and 3 are legal questions properly understood, in that they concern the application of a rule to a fact or set of facts. At stage 1, the judge is to be satisfied that Article 8 is ‘engaged’, i.e. that family life is at stake at all. This is a legal question, because it concerns the application of a rule (Article 8) to a set of facts to determine whether an actual relationship is to be understood as a ‘family’ one as the law defines it. At stage 2, the judge is to be satisfied that the interference is actually an interference at all - i.e. that family life will be disrupted such that it qualifies as what the law would understand to be significant. And at stage 3, the judge is to be satisfied that the interference is actually legal, which is to say, done in accordance with rules.

But at that point we leave law behind and we are in the realm of essentially political considerations - matters of public policy. What is ‘in the public interest’ is par excellence a matter of politics, not law. And what is ‘proportional’ to a ‘legitimate aim’ is likewise something that can only be assessed by a deliberative, which is to say political, process. It is not something which a judge is equipped or appointed to achieve.

This departure by courts from legal decision-making is, to put the case at its strongest, technically justified perhaps in respect of stage 4, the public interest stage, given that Article 8 is worded in such a way as to indicate that the right gives rise to public interest questions. The text of Article 8, you see, reads as follows, with the relevant sections highlighted:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

What is ‘necessary in a democratic society in the interests of national security…’. etc., etc, is in the end what is meant by the ‘public interest’, and in this regard it is at least arguable that the text of Article 8 therefore forces courts into engagement with determining the public interest.

A, to my eye much more plausible, argument would be that Article 8 requires courts rather to put into effect what the legislature has determined to be ‘necessary in a democratic society in the interests of national security…’, etc., etc. But in any event what has certainly been cut whole cloth from the fever dreams of the collected judiciaries of Europe is stage 5, which is the assessment of the ‘proportionality’ of the interference. This is the point at which chicken nuggets and the like generally become relevant, because it is the point at which a judge is compelled to interest him- or herself in the question of whether deporting somebody would result in ‘unduly harsh’ (and hence disproportionate) outcomes. And it is the point at which courts pretty unambiguously depart from any vestigal commitment to the rule of law, and start instead to engage in the mere application of their own opinion. What is ‘proportional’ and what is a ‘legitimate aim’ are matters about which reasonable people can disagree; they do not concern the application of rules at all.

How we (well, people who are ‘learned in the law’, anyway) have convinced ourselves that courts are equipped to decide what is in the public interest and whether this or that policy is ‘proportional’ to ‘legitimate aims’ is a long and sad story that would be too depressing and boring to recant here. The point I wish to make clear at this stage is that Article 8 claims, and indeed pretty much all human rights claims, ineluctably have the effect of channelling legal decision-making into a zone of non-law: issues concerning rights always and everywhere lead to decisions that are quintessentially political and not legal.

We used to understand this - or, at least, Thomas Hobbes understood it well enough in the middle of the 17th century. The point is that a right is a liberty (whether ‘to do’ or ‘forbear’, i.e., to refrain from doing). And this means that people are not in the abstract constrained in respect of anything they have a right to. If one has the right to express oneself freely in the abstract, for example, then one may in principle literally freely express oneself any way one sees fit. If one has the right to freedom of association in the abstract, then one may associate with literally anybody, and in any fashion, that one desires. If one has absolute liberty, then one may go wherever one chooses regardless of whose property it is. And so on.

The problem with this, of course, is that when comes to concrete matters, rights will come into conflict with each other, whether in the individual sense (for example, where the right to liberty of one individual conflicts with the property right of another) or the aggregate (for example, where the right to free expression is invoked to justify forms of expression which society finds objectionable, such as the displaying of extreme pornography in public). Rights claims must always therefore be traded-off against other rights claims, or against collective, aggregated rights claims in the form of the public interest, if society is to function at all.

Since the performance of trade-offs requires the choosing of priorities, and giving effect to preferences, this is unavoidably a political exercise in the broad sense that it concerns matters of policy. Do we, for example, want people to be able to express themselves freely to the extent they may display extreme ponography in public? To answer that question we must make a political decision, in respect of the extent to which we priotise free expression or public morality. And this kind of calculus is always present implicitly or explicitly when considering a rights claim, whether in the sense that the exercise of one right conflicts with another, or in the sense that it conflicts with the public interest as such.

The correct way to approach things, then, as far as Hobbes was concerned, was for the sovereign, the ‘artificial man’, to make those political decisions and, after having made them, legislate them into law, thereby creating rules which ‘determine’ and ‘bind’. We resolve the trade-off between, say, the right to freedom of expression of the pornographer and the public interest by making a law which resolves that trade-off in favour of the latter by prohibiting the public display of obscene images. That is what the State is for, in essence, at least as Hobbes saw things: the making of political decisions about competing preferences (although he did not use this language, of course), and then legislating accordingly so as to make rules that had to be obeyed.

What we increasingly do, however, thanks to the invention of human rights ‘law’, is the precise inversion of this: we legislate into existence certain rights (to freedom of expression, to freedom of association, to family life, etc.), and then solve the conflicts that arise between them, or between them and the public interest, through litigation. And hence the role of the legislature is entirely usurped by the judiciary, which takes on a quasi-deliberative function - albeit generally in a cack-handed and often one-sided and cringe-inducingly ignorant way. This cack-handedness is not because judges are unintelligent or ignorant; it is just because they tend to be cut-off from ordinary people, given to pomposity, possess overinflated egos, and are divorced from the consequences of their decisions. They are not answerable to the electorate, and so they do not have skin in the game with respect to the decisions they make.

This is a virtue when it comes to the application of rules - the fact that judges do not have skin in the game is a benefit in the sense that it insulates them from political pressure and bias in deciding the outcome of a case. But it is a profound vice when they have elevated themselves above the position of applying rules and instead turn their minds towards ‘the public interest’ and what is ‘proportionate’ in respect of ‘legitimate aims’. But, of course, this is what they have to do when rights have been conflated with law, and courts have directly or implicitly thereby been cast as adjudicators of the conflicts that invariably result.

To go back to immigration, the problem that we encounter is obvious. We have an (admittedly indefensibly complex and convoluted) system of rules, the core of which remains the Immigration Act 1971. At the time this piece of legislation was enacted, we had an approach to law and politics which was, in this respect at least, implicitly Hobbesian. We understood that there were a lot of competing rights or liberties at stake: the liberty of British citizens to come and go, the liberty of non-citizens to enter or remain, the liberty of British citizens not to be endangered by the presence of foreign criminals, and so on. And Parliament, exercising its proper constitutional role, weighed all of these rights and liberties in the balance, and then produced a piece of legislation which set out rules accordingly. These rules reflected either its own conception of the public interest, or else in certain circumstances delegated the power to a government minister to make rules or decisions according to his or her own ideas about what the Act calls ‘the public good’.

In a sane constitutional order, in other words, it is for the legislature to make law to ‘determine’ and ‘bind’ - to, in the case of deportation, for example, do as the Immigration Act does and give the Secretary of State (i.e., the Home Secretary) the power to issue deportation orders based on his or her assessment of the ‘public good’, and to make it a rule that immediate non-citizen family members of deported persons must also leave the country. And it is for the courts to then faithfully apply that legislation accordingly. This gives considerable discretion to the Home Secretary, of course - but that is what is most appropriate given that he or she possesses a wider view of the policy considerations than a court ever could, and is democratically accountable in respect of what the public indeed deem to be ‘good’.

Since the enactment of the Human Rights Act 1998, however, the situation has in effect been reversed. The position is now more properly described as one in which rights are themselves made into law, with the effect being that - in matters of immigration - each and every migrant is granted an explicit right to a family life from the outset. And this is then traded-off against the public interest, which is to say the aggregated rights of the citizenry, in litigation if and when any individual migrant is to be deported. And the locus of decision-making thereby shifts away from Parliament, and the Home Secretary (except insofar as he or she triggers the process), to the courts - meaning really the First Tier Tribunal.

So we have moved away from a framework in which Parliament considers the appropriate balance between rights and liberties and then legislates accordingly so as to make rules, to one in which legislated rights cause the appropriate balance in any individual case to be determined by the courts. The result of this is that courts thereby take on a role which is properly to be considered legislative - and the legislature (and, of course, the executive granted the power to make decisions by said legislature) slips into irrelevance.

There are three things to say about this.

The first is that faith in the democratic process, and in politicians, is currently plummeting down a bottomless Pit of Carkoon here in Britain. This loss of trust has many causes, but undoubtedly near the top of the list is the fact that politicians do not appear to be able to get anything done. The making of rights into law, which places political decision-making in the hands of judges, may have rather a lot to do with this - and this may be something for politicians, perhaps even politicians who comprise a poisonously unpopular sitting government, to reflect on.

The second is that it follows from this analysis that if rights are indeed to be explicitly legislated, they must be absolute - i.e., always trumping or obviating any ‘public interest’ argument. Some ECHR rights - the prohibition of slavery or torture, for example, - are indeed absolute in this sense; it is never in the public interest to keep slaves or torture people. That this is the case at least has the benefit of keeping judges away from any balancing exercise, as it does not engage them in public interest considerations at all when enforcing such a right. No human rights advocate has ever really been able to explain to me what the ‘value-added’ of human rights law is in this regard, however, versus ordinary legislation. The Slavery Abolition Act came into force in 1834 - a considerable length of time before 1998.

The third is that human rights law in general, and the Human Rights Act 1998 (which gives effect to the ECHR rights) in particular, is corruptive of good governance, because it severs the link between elected decision-makers and public policy. Aside from eroding faith in politics, this also produces bad decisions, because judges - myopic, blinkered, and usually biased towards the preferences of their caste - are in general poor policymakers. Properly democratically accountable decision-making, by contrast, caveated by the proviso that such a model has its flaws, has a way of muddling in the end through to workable outcomes. And this happens through the well-known and well-understood effect of incentives: the desire to be re-elected is a sharp knife prodded into the backs of Parliamentarians, and it is wielded infinitely more effectively to achieve results than any judicial process could hope to achieve. Human rights law, insofar as it interferes with Parliamentary decision-making, should therefore be jettisoned. And for these reasons I am supportive of the spirit of Braverman and Dampier’s efforts - even if I have my doubts about the way the jettisoning is to be achieved.

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1. Sometimes the reporting on cases like this is misleading - designed to single out a relatively trivial aspect of the judgment to generate headlines. But in this respect the decision really did hinge on the chicken nuggets issue. The son had behavioural difficulties, but the only explanation given as to why he should remain in the UK and not be deported with his father was his peculiar aversion to Albanian fried food.

2. Bingham’s staged approaches are now used for other immigration matters, such as refusals of entry clearance, also.