There is a misperception afoot among the public across the West, which is that our societies have become more ‘legalistic’. It is an understandable misperception, because there is an underlying truth behind it – namely, that democratic decision-making is increasingly supervened or constrained by what is called, in a slovenly sort of way, ‘law’. What I would like to show here is that purported ‘legal’ constraints are not really to be understood in that way at all – the more accurate description of our problem would be that in fact the barrier between the political and the legal has broken down such that the ‘legal’ sphere as such is disappearing before our eyes.
Human rights law is at the centre of this phenomenon, and I will focus on it here – specifically through the lens of the hot button issue of the day, which is immigration and asylum.
What goes on in the UK’s Asylum and Immigration Chamber, the part of the First-Tier Tribunal that hears cases concerning deportation, is rapidly becoming a popular spectator sport among journalists in the Right-wing press. Every day yet another madcap and apparently inexplicable ruling is made: the Jamaican drug dealer allowed to avoid deportation if he promised to only smoke cannabis; the Albanian drug trafficker allowed to remain in the UK on the grounds that his son had “sensory difficulties” and could not be expected to cope with life in Albania; the Pakistani paedophile who initially avoided deportation because it would be “unduly harsh” towards his children, etc. It is worth clarifying that we only tend to hear in the news about appeals to the Upper Tribunal (First-Tier Tribunal decisions are generally unreported), and strictly speaking these appeals only concern arguable errors of law and therefore often miss out a lot of the crucial reasoning, evidence, etc. But the cumulative point is well taken – the Asylum and Immigration Chamber has gone, to use the technical term, nuts. And human rights are invariably the trigger for the insanity.
Previously, I have talked about the political theology of this issue at some length. Here I would like to elucidate its jurisprudential aspects. And I’ll do this through discussing the case of ‘RC’, a Zimbabwean sex offender who recently escaped deportation in – let’s go out on a limb – very dubious circumstances. RC, it should be said, was allowed to remain initially by the First-Tier Tribunal in 2023; the Upper Tribunal recently confirmed this, and its judgment is the only one to be reported, though we can glean from it the reasoning on which the First-Tier Tribunal decision rested.
The RC Case
RC has been living in the UK since he was 16 years old, having been granted Indefinite Leave to Remain apparently through family connections. In 2017 and 2018, at the age roughly of 27 years old, he was convicted of various sexual offences against children (the judgment is coy about which offences exactly) and sharing images of child sexual abuse, and was sentenced to five years and three months in prison. In accordance with the normal course of things he was then told that he would be deported back to Zimbabwe, which is what is supposed to automatically happen to a foreign national who is convicted of an offence and who is sentenced to longer than a year’s imprisonment (more on this later).
The trouble is, though, that RC was able to call in a very large number of dimensions of victimhood in support of his claim not to be sent home. He is (see if you can spot the odd one out, here) “a gay white man, who would seek to live his sexual orientation openly, and who is also a convicted sex offender, and a person with the following health conditions: autism, attention deficit hyperactivity disorder (ADHD), attention deficit disorder (ADD), post-traumatic stress disorder (PTSD), depression and deafness”. This, the First-Tier Tribunal was apparently led to believe, would mean that RC would face difficulties back in Zimbabwe – as an openly gay white man who is also a convicted sex offender he would face “substantial hostility” on his return, and this would “be compounded by his disabilities limiting his capacity to interact in a way that would diffuse rather than exacerbate the hostility”.
The reason why the judge in the First-Tier Tribunal was able to come to this understanding was because an expert witness on gay and lesbian issues in Zimbabwe, an academic lawyer, had given evidence to the effect that “[RC]’s white ethnicity and his convictions as a child sex offender would increase risk as well as his disabilities (autism and deafness) as a result of these reducing his social skills [sic]”. The same expert apparently regularly appears before the Asylum and Immigration Chamber to provide expert evidence with regard to deportations to Zimbabwe, and he was responsible for providing, in the case of LZ from back in 2012, evidence which led the Tribunal to come up with its ‘country guidance’ for Zimbabwe on this issue. This holds in effect that there is no ‘general risk’ to gay people in Zimbabwe, but that ‘being openly gay may increase risk’. The risk in question would appear to be that of ‘discrimination, harassment and blackmail’.
It followed from all of this, in the eyes of the judge in the First-Tier Tribunal, that to deport RC and send him back to Zimbabwe would expose him to “risk”. And this would therefore be a violation of his rights arising from Article 3 of the European Convention on Human Rights (ECHR), which prohibits torture and inhuman or degrading treatment or punishment. The UK, as a party to the ECHR, may not indirectly subject somebody to torture or inhuman or degrading treatment or punishment by deporting them to a place where they might face such a fate. Deporting RC to Zimbabwe would expose him to risk of “hostility” from the authorities for being a sex offender, as well as discrimination, harassment and blackmail for being openly gay, and that would be inhuman and degrading. And therefore, the logic goes, RC simply must remain here (probably at taxpayers’ expense, and presumably for the rest of his natural life; it’s a safe bet that he will never be a net contributor).
You will by this point, if you are anything like me, now be feeling an incipient migraine coming on, instigated by the moral illiteracy of the notion that if RC was deported to Zimbabwe and ended up experiencing the risk of hostility, discrimination, harassment and blackmail it would somehow be the fault of the British state. Why, simply by dint of RC having ended up living here, does Britain have to take responsibility for his never having to experience ‘risk’ – even to the point of allowing him to remain in the country having sexually abused children? I understand how, jurisprudentially, we have arrived at that point, and that issue will be discussed in more depth below, but as a matter of plain morality it is an absurdity: the British state’s primary moral duty in circumstances such as this is to protect its citizenry from non-citizens who have revealed themselves to be dangerous and, as it were, very bad guests – not to treat them like mother hen.
The migraine you are experiencing will likely ascend into a full-blown aneurysm at the thought that the fact that RC was a child sex offender was itself deployed as a reason why he shouldn’t be deported on the grounds that it would expose him to “hostility” on his return. There is something genuinely debased about a legal system which weighs the fact that somebody is a known criminal against a decision to deport him on the grounds of his criminality – I find it difficult to comprehend how purportedly intelligent people could contrive an outcome so plainly daft.
The Eight Ways to Fail to Make Law
But these issues are obvious and in a sense beside the point: the fact that the British judicial process nowadays produces morally illiterate and plainly daft outcomes is not news. What I would like to concentrate on instead is the fact that what is going on here is simply not the application of law in any meaningful sense of the word.
Let me, then, go back to a subject which I have covered before, which is how we assess whether a purported legal system can justifiably be called ‘law’. This was hitherto a thorny problem in jurisprudence, nowadays largely solved by people no longer thinking about it very hard. But it is still worth thinking about, for reasons which I will come to – and at this point I will return to the American legal theorist Lon Fuller, who argued that law was only ‘law’, as it were, if it consisted of rules possessing eight characteristics. These were:
- They have to actually be generally applicable rules rather than being random or rooted in pure discretion
- They must be made public
- They must be prospective, not retrospective (i.e., they must not be used to render unlawful conduct that was lawful when it was done)
- They must be comprehensible
- They must not contradict each other
- They must be reasonably constant and not in flux
- It must be possible to comply with them
- They must be applied coherently and rationally in such a way that adjudication and enforcement reflect the rules’ content
Fuller called what he was describing “procedural natural law” or law’s “inner morality” – a kind of secularised, agnostic version of natural right. The idea is that law is an exercise in governing human conduct in accordance with rules. But this can only be adequately performed if the rules in question have the aforementioned characteristics. If they don’t have those characteristics – i.e., if they are purely discretionary, if they are not public, if they are not comprehensible, if they are constantly changing, etc. – then human conduct is not being governed in accordance with rules at all; it is being governed by political whim. Rules are only rules if one can with reasonable accuracy and certainty know what they are and structure one’s own behaviour accordingly. If one cannot know what the rules are (because they are not public, not comprehensible, constantly changing, etc.) then that is tantamount to saying there are no rules – and no law – at all.
The great problem with human rights law is that it undermines the making of rules conceived in these terms, because its broad, aspirational, open-ended and nebulous nature gives it the character of an almost empty vessel into which political decision-making can be poured. The result of this is that the ‘rules’ of human rights, such as they are, lack almost all of Fuller’s eight characteristics. Notionally there are things that look like rules – like the aforementioned Article 3 of the ECHR, which states that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. But they are so wide as to be able to be interpreted and given effect in all manner of unexpected, changeable and indeed whimsical ways – such that they lose whatever loyalty they may have once had to the concept of rule-making, and float away untethered into very strange places (e.g. RC, the child sex offender, might be blackmailed or harassed if he is deported to Zimbabwe and that, if you squint at it for long enough, would look a bit like “inhuman or degrading treatment”, and therefore – surprise! – Article 3 prevents his deportation).
‘A Calibrated Law’
Another way of putting this, as you will have intuited, is that human rights ‘law’ is better understood as the exercise, by judges, of political whim. And here you will have to indulge me as I explain all of this in reference to a recent interview given by the former President of the UK’s Supreme Court, Brenda Hale (now ‘Baroness Hale of Richmond’), in which many of these issues directly arise.
The most interesting and apposite of Hale’s comments in this interview are about the subject at hand – human rights – though she comes at it, characteristically, in a very polite and milquetoast sort of way by immediately grabbing for examples which do not raise too many awkward questions (this being an easily identified displacement activity among people of her caste). By far and away the most important issue in respect of the Human Rights Act 1998 is its consequences regarding immigration. But Hale is intensely relaxed about that subject and certainly does not want to problematise it. So instead she directs the listener’s attention to the hoary old subject (hoary and old to law students, anyway) of ‘press freedom’ in relation to – non-UK-based readers must excuse me – an actor who was once vaguely famous for having starred in ‘Allo ‘Allo.
The basic idea, as Hale presents it, is as follows. Gorden Kaye, the aforementioned actor, was in 1990 injured in a storm by a piece of wood hitting him in the head. Lying in hospital recovering from brain surgery, he was photographed by paparazzi. His agent, acting on his behalf, sought an injunction to prevent the photographs being published, and failed on the basis that in English law at that time there was no concept of a right to privacy. No applicable tort had therefore been committed against Kaye. And there was therefore no basis on which an injunction could be granted.
The Court of Appeal in Kaye v Robertson [1991] FSR 62 did exactly what it was supposed to do: it applied the rules that existed at that time to the dispute, but signalled to Parliament that probably there ought to be legislation on the matter. Eventually this lacuna in the law, such as it was, was however filled instead by the development of a tort of “misuse of private information” (which has its own problems, but which in essence makes it a civil wrong to disclose information in relation to somebody who has a “reasonable expectation” of its privacy). But said lacuna also became something of a cause célèbre because it was seen as a moral outrage within chattering-class circles that English law should have operated in this way. No doubt this outrage was partially sincere, but only very partially so; the truth is that much of it was motivated by snobbery about the ‘gutter press’ and the awful, deplorable proles who would rather read about the travails of minor celebs in the Sun or Sunday Sport than they would learn what Polly Toynbee thinks about politics in the Guardian.
The opportunity to rein in the press through human rights law eventually came in the form of the case of Campbell v MGN Ltd [2004] UKHL 22. Here, the supermodel Naomi Campbell had been photographed leaving a drug rehab shortly after having issued public denials of having a drug problem. The photos were duly published in the Mirror, and Campbell sued for breach of confidence, which gave the House of Lords the opportunity to create its new tort (the aforementioned “misuse of private information”) and also to explicate how human rights affected things. Without going into too much detail, in the court’s view, the essence of the matter was that when ruling in such a dispute it had to balance Article 8 of the European Convention on Human Rights, which contains the right to privacy and family life, with Article 10, the right to freedom of expression. And here’s how Baroness Hale in the interview in question described the exercise:
So what we have now [thanks to the existence of the Human Rights Act 1998] is a calibrated law, in which on the one hand, you’ve got the right to privacy, and on the other hand, there is a right to freedom of speech, that neither of them [are] absolute rights, that both of them can be interfered with for a good reason in a proportionate way. … And so you have to balance the importance of the privacy right against the reasons that the media or anybody wants to invade that right, and whether those are good enough reasons to do so.
I want you to note something about this, in light of what I said earlier in this post about Lon Fuller and his eight characteristics of legal rules, which is that what Hale is here describing is not a rule properly understood. It is something like its opposite: an anti-rule, as it were, which leaves effectively everything up to judicial discretion. There are two competing rights – to privacy and freedom of expression. And in any given dispute, the court gets to decide which right wins – what would be a “good reason” to interfere with one or the other “in a proportionate way”.
Hale describes this as a “balancing” exercise. But of course it is anything but – it is really an exercise in picking priorities. In any given moment, one right between two competing rights has to win out, and the court gets to determine which values, which preferences, trump the other. Do we care about Naomi Campbell’s privacy more than we care about the right to freedom of expression, or vice versa? Well, the judge decides for us.
This is another way of saying that human rights ‘law’ is better described as something along the lines of human rights ‘arbitration’ – the law does not so much create rules which courts apply, as it creates principles which the court chooses between on its own understanding of what would be good or bad, right or wrong, in any particular case. And this can only in the end be a political matter, because it will always necessarily involve a decision about which values are important and which are not – whose freedoms we wish to enshrine, and whose we want to trample over. In the case of Naomi Campbell, it was a decision about whether to protect the feelings of a celebrity or the freedom of the ‘gutter press’ and, in turn, the freedom of the public to decide for itself what was in its own interests to know about. But of course this was a relatively trivial case about a relatively trivial matter (for all that it established an important principle); there are much more important examples than this.
Political Whim
There are indeed, as you will remember, cases like that of RC, which serves to illustrate the point more forcefully and reveal the problem more starkly. Without the existence of the ECHR or the Human Rights Act 1998, RC’s position would have been clear. According to s. 32 of the UK Borders Act 2007 he would have had to go home: a ‘foreign criminal’, meaning a non-British citizen who is convicted of an offence and sentenced to a period of imprisonment longer than 12 months, must be deported. And that would have been that – that would have been the exercise of the application of law properly understood.
But the intrusion of human rights suddenly complicated things. Now, what was being applied was not a Fullerian rule, possessing the Fullerian characteristics, but a decision about whether a ‘risk’ would exist if RC were to be deported, based not on the application of legal reasoning at all but rather on the say-so of a single purported expert. Expertise, in other words, was being channelled through the medium of human rights into a decision about interpretation of fact rather than law (i.e., whether there was a ‘risk’ to RC). And the decision that was being made by the Tribunal was based on an (entirely implicit) political weighing-up of the risk to RC associated with his deportation to Zimbabwe and the risk to the public associated with his remaining here. The judge thereby, it goes without saying, became the vehicle not for the application of rules but for the operationalisation of polite bien pensant opinion disguised as legal process. And that is always what human rights law in the end amounts to, as we have seen with Naomi Campbell – a means through which elite priorities find binding effect.
The result of this is, first, a fundamental obfuscation of the relationship between actions and consequences. The great virtue of s. 32 of the UK Borders Act 2007, as I have mentioned, is that it is a legal rule in the strict sense. Everybody knows where they stand in relation to it: if you’re not a British citizen, and you commit a crime of any real seriousness, you will be deported. You can predict the consequences of your actions. And you can order your affairs accordingly – probably, and ideally, by minding your Ps and Qs and not committing crimes.
Human rights law, because of the way it opens up questions of fact not to the application of legal rules but to the application of judicial preferences with respect to values, has exactly the opposite effect. Actions may have consequences. But they may not. You might get deported pursuant to s. 32 of the UK Borders Act 2007 if you are a foreign criminal. But then again, you might not. It depends on what the judge had for breakfast. It could be the case that a ‘country expert’ comes along and opines sagely about ‘risk’, and it could be that the judge believes him. It could be that it would be thought to be ‘unduly harsh’ to your children to deport you. It could be that the judge decides you are a good egg and believes that you will from now on refrain from importing drugs and just sit quietly in your bedroom getting stoned. But you can’t really tell until after the fact.
This, to repeat, is not law. It is political whim – which, thanks to Fuller, we can easily identify. And, as well as causing the relationship between actions and consequences to decay in all sorts of undesirable ways, it comes with much more pernicious and pervasive effects.
The negative results of the decision in RC and in cases like it are obvious in the immediate sense: a decline in physical safety for everybody living in the country by dint of the fact that, simply, there are more foreign criminals here than there should be. But what is less frequently remarked on is that, as we have seen, the reduction of the legal process to political choice-making undermines the basis of the legal order as such. It creates the impression, through the ramshackle, unpredictable way in which decisions are made, that the rules themselves are up for grabs. And in doing so it problematises the very notion that such a legal order could exist in the first place. It suggests instead the existence of a nakedly political order, within which law becomes re-conceived as the application of judicial discretion or else ‘expertise’, and which is ruled by whim so as to give effect to the priorities of those who govern. This, it goes without saying, is not to be understood as the rule of law at all – but something altogether different: the rule of the strictly political, and the abandonment of law as such.
This is poorly understood by the public, who commonly mistake the problem for ‘legalisation’. The problem, though, is not legalisation at all – legalisation, in the sense of governing conduct through rules which are actually rules, is something we could do with rather more of. What we really have is a problem of politicisation which undermines the governing of conduct through rules. This, I think it is safe to say, is unlikely to end well. And it suggests that something truly fundamental is at stake in our anxieties over immigration and asylum: the question of whether we are truly, fully committed to what the rule of law entails, or not.
Postscript: I had already finished writing this post when the news emerged that the Lady Chief Justice, Baroness Carr – the head of the judiciary in England and Wales – had given a rebuke to both Sir Keir Starmer and Kemi Badenoch for having dared to say in Parliament that they thought a recent decision by a judge in the Upper Tribunal regarding an immigration matter had been ‘wrong’. Carr, as is typically the case when issues like this crop up, rather pompously declared that “it is for the Government visibly to respect and protect the independence of the judiciary”, and that “it is not acceptable for judges to be the subject of personal attacks for doing no more than their jobs, to find the facts on the evidence before them and apply the law as it stands, to those facts”. Maybe if judges stuck to finding the facts on the evidence before them and applying the law – chance would be a fine thing – the problem of personal attacks would not arise. But if one is going to engage in politics then one should, it probably ought to go without saying, expect politics to come knocking at one’s door. This may be something for Baroness Carr, and the judiciary in general, to reflect on.
Dr David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
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Excellent article and thanks for sharing. The UK’s abysmal performance in handling this virus has been observed world wide. I’m hoping this leads to a complete overhaul of the entire system, but I’m not holding my breath.
There will just be another Quango created to oversee every other Quango involved; staffed of course by the usual suspects referred to above.
Steady on…..Give credit where credit is due… PHE did tell us how many brussells sprouts we should eat per week …..
Bloody vital that. (And works out about £200k per sprout):-))
PHE are responsible also for the refusal to consider the role of Vitamon D3 in the immune response. They have a stated level of D3 in the blood which is disputed by many immunologists who think it should be multiplied by a factor of 10. The refuse to reconsider, and on the NHS website D3s role in immunity isn’t even stated, their recommended dose is ‘for bone health’. A gang of overpaid slow thinking chatterati bathered together on overgenerous expenses and unwilling to admit anything. They are killing people who clearly lack D3 in sufficient qualtity, whether through age, ethnicity or lifestyle. D3 supplement is avalable and relatively cheap, simply handing it out to all patients would in a matter of weeks show what a difference it could make.