An Attack on All Our Rights

Apparently, Shabana Mahmood (that strangest and rarest of beasts – a competent Labour minister) is plotting to put ‘people’s rights at risk to score political points’ and ‘weaken the European Convention’ by making it easier to deport people. And this will apparently constitute an ‘attack on all our rights’.

The attack in question is coming in the form of the Immigration and Asylum Bill 2026, which is due to have its second reading on 13th July. The Bill does rather a lot, and bits of it are actually very welcome – it indicates that (my goodness) some thought has gone into what the government is trying to do in respect of immigration policy. But that’s for another day. Today I want to focus in particular on Liberty’s remarks about the aspects of the Bill which deal with Article 8 of the European Convention on Human Rights (ECHR), the so-called ‘right to family life’, and what this demonstrates about the, frankly, debased and rather silly way in which human rights advocates think (or, rather, don’t think) about the values they hold dear. This will in turn lead us to the problem lying at the heart of human rights law, which is that it is not really law and, moreover, not even a coherent or sensible concept.

Let’s begin at the start, then. Article 8 of the ECHR reads as follows:

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.

I will come back to the second provision in due course, but let’s for now stick with the first, which is the core of the right. What you will see about it is that it sets ‘family life’ in the context of ‘home and correspondence’, and also ‘private life’. The reason for this is straightforward: when the ECHR was drafted the drafters had in mind that the right should protect individuals from the type of spying, censorship, snitching, and so on that had characterised the authoritarian societies of the 30s and 40s, and still characterised life in Eastern Europe. They also wanted to protect the right of individuals to choose what sort of education their children should have, and of parents to pass on their values to their offspring.

But, fast forwarding to 2026, the right has become monstrous in scope, because the European Court of Human Rights (ECtHR) in Strasbourg has, in a meretricious and slovenly way, over the decades brought basically every arena of life under Article 8’s auspices. The worst and most flagrant example of this was the recent judgment of the Court in KlimaSeniorinnen v Switzerland, in which it decided that if you squint hard enough at Article 8’s text you can discern in it a right to be protected from the effects of climate change. But the most salient examples in the public eye concern deportation, where Article 8 is often invoked as a reason why some foreign criminal or visa overstayer should not be removed from the country on the grounds that it will be disruptive to some relationship or other with a loved one.

This is a fairly recent development in the grand scheme of things (the first example of Article 8 being used to frustrate deportation anywhere was I believe in Berrehab v Netherlands in 1988, although there are older cases involving family reunions), but it is now talked about by human rights activists and scholars as though it is holy writ. And there are many, many now-infamous examples, including ‘catgate’ (when a Bolivian thief escaped deportation partly on the grounds that he and his male partner had a durable relationship grounded on shared ownership of a pet cat), and the ‘chicken nuggets’ case (in which an Albanian money launderer was permitted to remain in the country because if were to have been deported his autistic son could not have accompanied him owing in part to an aversion to Albanian chicken nuggets).

The Immigration and Asylum Bill 2026 aims to restore sanity to the system by limiting the scope of Article 8 in immigration cases. It does not go anywhere near far enough – the legislation should simply remove immigration and asylum from its scope entirely. But what it does is to try to restrict Article 8’s application in immigration cases to the ‘core cohabiting family’ (meaning spouse or equivalent, and children); to emphasise the importance of financial independence and not being a strain on the public purse when a court or tribunal weighs the right to family life against the public interest; to default to children being expected to accompany parents if the latter are deported; and so on.

The aim is, undoubtedly, to at least signal a restriction in the effectiveness of Article 8 to act as a barrier to removal of undesirables. Now, whether or not it will make much difference is debatable, and a subject for another post. But it will of course worry human rights maximalists, who are few in number but given to histrionics and possessing of large megaphones. Hence Liberty’s recent missive, which begins by describing Article 8 as ‘something we all need, and something we all deserve’, castigates the ‘myths and misinformation’ which gets spread about it online, and spins it as a ‘right which keeps families together’. The aim seems to be to disassociate Article 8 from the immigration context in order to portray human rights as an all-or-nothing proposition: weakening Article 8 for one group (i.e., migrants) ‘will not protect any of us’, the email declares, and hence the central thesis follows: ‘any attempt to weaken the European Convention is an attack on all our rights’.

This idea – that human rights are a sort of monolithic bloc of entitlements to which everybody is entitled – lies at the heart of human rights thinking, and human rights advocates are truly formidable in their belief that such a fantasy could be made real. And it really is a fantasy – the sort of collective delusion that only those who have been spectacularly expensively educated could possibly believe. It reaches its apogee, of course, at the United Nations level, where the Office of the High Commissioner for Human Rights functions on the premise that it is possible to realise ‘all human rights for everyone, everywhere’ – the overarching goal of the entire UN human rights architecture. It is both possible and desirable, in this foolish belief system, for everyone to have all human rights all the time, and it of course follows to somebody who is in the grip of such a delusion that any attempt to row back on human rights protections in some field or other risks undermining the whole endeavour.

It is worth dwelling for a moment on why such a belief is foolish, because it has an important bearing on the argument against restricting the scope of Article 8 in immigration cases. The reason why it is foolish is that rights can never be absolute, because human beings live with other human beings and their interests are not homogenous. This means that if a legal system has a concept of rights, then those rights have to be traded-off against each other, since they will conflict. And the end state which human rights law gestures towards therefore simply cannot be ‘all human rights for everyone, everywhere’. The exercise of one individual’s right will always conflict with another’s, or with the collective public interest.

The most obvious historical example of this is discrimination and freedom of association. The two most famous moments in the history of the development of human rights, namely the civil rights movement in the USA in the 1960s and the anti-apartheid movement in South Africa, essentially hinged on this conflict, with an assertion of a right not to be discriminated against ultimately triumphing over the right of those with discriminatory attitudes to exclude members of a racial out-group. The great majority of people would agree that the right not to be discriminated against should indeed trump the right of racists to exclude people on the ground of race. But at one time, of course, that was a hotly contested matter in those parts of the world. And that conflict, between freedom of association and non-discrimination, persists in the present day in a different form in the dispute between trans women who assert their right not to be discriminated against, and organisations or groups who assert a right to choose who they associate with (i.e., only biological women).

Another obvious and familiar example, this time concerning the conflict between the exercise of one individual’s right and the public interest, comes in the hoary old chestnut of freedom of speech (in the form of whistleblowing) and national security. Should there be an untrammelled right to divulge information sensitive to national security? And what about the even hoarier old chestnut of the right not to be tortured, and the arrested terrorist who knows where a nuclear bomb is hidden? That’s setting aside the question of freedom of speech and public morality; should, for instance, a group advocating abolishing the age of consent be at liberty to distribute leaflets outside a primary school?

But these types of instances, the bread and butter of secondary school classroom discussions about law and morality, should not blind us to the fact that all decisions about rights ultimately involve a trade-off somewhere, most often at the level of resources and, therefore, involving the right to property. Long-term readers may remember an old post of mine in which I discussed the case of R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57. Here, restrictions on student loan access to do with residency and settlement were found to have been unlawful, because discriminatory, restrictions on the right to education. The effect of the decision, the court found, would likely result in around 2,400 extra people being eligible for student loans each year. The court did not, revealingly, bother doing the maths about how much this would cost, but assuming that the average student loan would have been in the region of £30,000 a year (covering both tuition fees and maintenance) that amounts to £72 million in public money. And that is, of course, £72 million of money that other people have paid in taxes, or which is borrowed on the debt markets against future taxation, and which is coerced out of them by the state. This type of decision is never spun as being a conflict between the individual’s right to education (or housing, or social security, or whatever) and the right to property of every taxpayer in the country. But that is only because nobody likes to think about the implications.

You get the point, anyway. And I am keen to press it, because it gets to the heart of the problem with the very concept of human rights law as such. The daft maxim that ‘everyone’ has ‘all human rights’, ‘everywhere’ is really just another way of saying that, since exercising rights will inevitably lead to conflict, decisions have to be made about trade-offs between individual interests, or between one individual’s interests and the public interest. And that is really just another way of saying that matters of right are political, not legal. Law is not about trade-offs. Law is about applying rules after the political process has determined where a trade-off should be made and what the outcome should be.

We understood this once, long ago; at the risk of repeating myself, it’s all there in Thomas Hobbes’ Leviathan. For Hobbes, everyone in the state of nature precisely does have ‘all human rights everywhere’ (although he didn’t use the word ‘human’) because in the state of nature everybody is at liberty to do whatever they choose. The only thing governing their exercise of their rights is the fact that other people will likely fight them to see whose rights win. The point of the state is to come along with a body of law that sets in place restrictions on their rights so that actual honest-to-goodness conflict does not occur. In other words, law is posterior to the process whereby decisions about trade-offs are made – the Leviathan decides where lines should be drawn, and whose preferences should trump others in whatever specific circumstance, and then makes law accordingly. Private law is a subject for another day, but as a matter of public law rights are not legal instruments at all – that is the absolute opposite of the proper way to think about them.

And this brings us to Liberty and the deep confusion of these people when it comes to the very subject they purport to be expert in. In their telling, to go back to the beginning, Article 8 is, as it were, ‘for everyone, everywhere’: restricting it in immigration cases is an ‘attack on all our rights’ and weakening it for migrants ‘will not protect any of us’. But I hope you will now see clearly the absurdity – one has to be truly learned in the law not to understand that deporting foreign criminals most certainly will protect us, and will very often indeed protect the people in society who most need it, such as young women who find themselves prey to aggressive male attention from outsiders. Only an idiot (I am sorry to put it so bluntly) would say that there is no conflict between Article 8 and the public interest when it comes to matters of immgration and asylum, and particularly the deportation of foreign criminals, and therefore no trade-off to be made in this regard. Restricting the right’s scope, if implemented correctly, will actually, very literally, protect us in the only way in which that phrase could possibly make sense – and the only meaningful decision to be made is the political one about whose interests we want to best secure: foreign criminals or their potential victims.

The use of the word ‘idiot’ may be harsh, but it is merited. In closing, let me bring you back to the text of Article 8, and its second section, which I said I would come to. Here it is, to remind you:

There shall be no interference by a public authority with the exercise of [the right to private and family life] 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.

I put the relevant parts in bold; since you are not an idiot, you can join the dots for yourself. It is my belief, for reasons which will be apparent in this post, that the European Convention on Human Rights is fundamentally misconcieved and that the very concept of human rights law is incoherent and dangerous. But at least the drafters thought about what they were writing. They knew full well that there were always trade-offs to be made, and they made provision for those trade-offs in the very text itself. Anybody who read the Convention properly would see this instantly, and there is nothing that Mahmood is doing that does not accord with it. The new Bill does not of course go far enough. But to describe it as an ‘attack on all our rights’ is adolescent silliness, and Liberty should be ashamed of themelves for their negative contribution to public understanding and debate.

This article (An Attack on All Our Rights) was created and published by David McGrogan and is republished here under “Fair Use”