It is now 25 years since the Human Rights Act 1998 (HRA) entered into force and far from this endurance cementing its legitimacy, the judicial protection of human rights in the UK finds itself in the perennial political spotlight. The European Court of Human Rights (ECtHR) is also never far from the headlines, not least in the context of the supposed ‘small boats crisis’ and the debate over immigration more generally. Legal academics and practitioners (with the exception of those working for high-profile think-tanks) who interject in this debate often struggle to be heard above the cacophony of the more salacious claims about abuses of human rights that are the fodder for the right-wing dominated British press. Human rights abuses are refashioned to abuse the protection of human rights. This can be deeply demoralising for defenders of the judicial protection human rights, among whom I count myself. However, rather, than wallowing in self-pity over the state of rights discourse in the UK, I believe that there is actually a glimmer of hope in this otherwise bleak debate.

There are, I contend, two distinct spheres to the debate on what I will refer to as ‘rights hostility’ in the UK. One of these spheres is legal and technocratic in nature. The other is more emotional, visceral, and performative. It is designed to be political theatre. It is, to borrow a term from professional wrestling, ‘kayfabe’. In this post, I outline these two spheres, explain how they relate to each other, and why misunderstanding the kayfabe nature of rights hostility could lead to fruitless and self-sabotaging attempts at human rights law reform. It would, I contend, be bringing facts to a vibes fight. 

The Technocratic and Legalistic Debate

The technocratic or legalistic debate centres on claimed legal defects concerning the judicial protection of human rights in the UK and at Strasbourg. Examples of these arguments include critiques of the supposed supremacy of the ECtHR over domestic courts by way of section 2 HRA, expansionist interpretations of statutes using section 3 HRA to contort their meaning beyond what was intended by Parliament, and the phenomenon of rights inflation such as the generous interpretation and application of the right to private and family life under Article 8 ECHR. In response, defenders of the judicial protection of human rights fight fire with fire. They highlight that section 2 does not bind UK courts to Strasbourg, that early cases like R v A regarding the expansive use of section 3 were an outlier rather than an archetypal example, or they emphasise the fact that the Good Friday Agreement demands that the UK remain a signatory of the ECHR and incorporate it into domestic law. 

An excellent example of the technocratic or legalistic critique of human rights can be seen in a recent contribution to this blog where Sanjit Nagi contends that withdrawal from the ECHR is necessary: 

especially if Britain wants to maintain true legislative freedom, resist an activist ECtHR, prevent oversight of an elected majority in Parliament, begin to shift away from Convention case-law, and move towards a new model of rights. 

Much of this is familiar ground for political constitutionalism and Nagi harkens back to the halcyon days of the British constitution under Clement Attlee for inspiration. Nagi prefers withdrawal from the ECHR rather than reform: 

…as an opportunity for restoration and reemergence of the British constitution. One where rights are negotiated in Parliament by elected officials and a commixture of powers, which includes the judiciary and common law, uphold the freedoms we all cherish.

However, there is profound irony in these calls for a rejuvenation or restoration of the political constitution that misunderstands the current political moment. By looking back in history, towards a romanticised version of the political constitution—when the good chaps were good chaps—before the Troubles, before Thatcherism and the neoliberal project, before Tony Blair’s Third Way, before 9/11, before the 2008 financial crisis, before Brexit, before Covid-19,  we run the risk of missing what is in front of our faces. If the UK constitution ‘is no more and no less than what happens,’ then it is essential that we understand what is actually happening in Britain and established democracies across the world today. 

The Kayfabe Debate

Over-shadowing the technocratic debate is the more guttural, crude rhetoric regarding human rights in the UK. In 2016, the late great Conor Gearty called the British debate on human rights a ‘Fantasy Island’. Beginning with a post on this blog and following it up with a monograph, Gearty, in his own inimitable style, interrogates and debunks several myths concerning human rights in the UK. As forceful and piercing as this defence of human rights is, however, I think the debate has now moved beyond this idea of a ‘fantasy’. Certainly, there is a degree of fictious story-telling, grounded in a romanticised version of the UK’s past, that is integral to this narrative but the idea of a fantasy does not fully capture the intention of these myth-makers, as it could equally apply to those who genuinely believe that such a fantasy past did in fact exist. Instead, I wish to propose an alternative concept: kayfabe.

Kayfabe is a term co-opted by professional wrestling as the idea of presenting staged performances as genuine or authentic. The wrestlers know that it’s fake. The audience too knows that it’s fake. But everybody pretends that it’s real. Even when the wrestler leaves the stage, they stay in character. They never break the charade. You never break kayfabe.

An increasing number of scholars studying populism are turning to kayfabe as a lens through which to understand the current political zeitgeist. It gained particular purchase in the United States where its explanatory force was in shining new light on the first presidential term of  Donald Trump—himself no stranger to the actual wrestling stage.

 Kayfabe allows politicians to ground reality in a fictional story of their own creation rather than objective truth and they deploy several tools and tactics to do so. These include: the disregard of codes of conduct; the celebration of story-telling; the suspension of disbelief; mediated spectacles; the antagonistic division of relations into ‘faces’ (good) and ‘heels’ (bad); personalised relationships and direct appeals from the performer to the audience; signifiers of brute force; limited reliance on persuasive abilities; and stage presence.

It is kayfabe that enables politicians like Suella Braverman to refer to a ‘hurricane of migration’, and explains Robert Jenrick’s claim that the SAS kills rather than captures terrorists because the ECHR would just require their release.  Kayfabe explains why Nigel Farage can claim to be reduced to tears over the claim that an individual wasn’t deported because his son disliked foreign chicken nuggets, or even why Theresa May felt confident claiming that a person could not be deported because of their cat.

In this kayfabe world, it matters not that many of these claims are demonstrably false; on the contrary, that is precisely the point. Such is the danger of the moment we live in as rising authoritarianism capitalises on eroding democratic norms and practices. The intentional creation of the fictitious and insistence upon its reality—never breaking kayfabe—becomes an expression of power. Lawyers and academics therefore find themselves in the difficult position of expending intellectual labour to make legal arguments rebutting these fictitious claims in a political climate where the truth of those claims is irrelevant. In short, many are stuck trying to reason people away from a view or belief they never reasoned themselves into to begin with. We are bringing facts to a vibes fight. 

Bringing Facts to a Vibes Fight

When those on the self-identified centre-left of British politics seek to co-opt aspects of this rights hostility, kayfabe suggests that as a political strategy designed to win votes, this is doomed to fail. Kayfabe is co-constructed. It is not that audiences believe that wrestling is real; they are not ‘dupes’. Rather, the audience participates as an actual contributor. They are integral to adding to the match’s narrative and reifying the fiction; however, this also demands a degree of bona fides on the part of the performer. The performer must commit to the character; they must not break kayfabe. So when a ‘human rights lawyer’ Prime Minister leads a charge against the ECHR, the audience is likely to see through it. Far from bona fide, it comes across as cynical and opportunistic. Rather than dissipating rights hostility, such moves merely add weight to the idea that human rights protection in the UK is unduly skewed in favour of the bad folk-devil and so the Overton window shifts.

That is not to say, however, that legalistic, technocratic arguments are wholly irrelevant; on the contrary, for those seeking to attack the judicial protection of human rights, they can add a veil of legitimacy to the illegitimate. They act as the bridge from the kayfabe world to the real world; from the unacceptable to the acceptable. The crudity is washed and polished before being published by influential think-tanks—among the most powerful  norm entrepreneurs in Britain today. In this way, they drive the actual business of human rights reform. 

However, when stepping from the kayfabe to the real world, these arguments must come into contact with reality. And it is here where the technocratic defences of human rights come into their own. This is a different playing field, one where legal and practical difficulties cannot simply be willed away. When concrete attempts are made to convert such rhetoric into a coherent legislative basis, it results in the convoluted farrago that was the doomed Bill of Rights Bill. Technocratic defences of human rights therefore do have a place. It is here, in the actual realm of law-making that the technocratic defences of human rights bite. Much like the practical legal realities of Brexit were far removed from England’s green and pleasant lands evoked during the referendum debate,  the dark Satanic Mills of the HRA and ECHR have stubborn foundations.  A post-HRA or post-ECHR UK is, frankly, difficult to achieve and these difficulties cannot simply be willed away. Technocratic arguments can thus act as defence for the judicial protection of human rights; crucially, however, they cannot be the basis of a counter-attack. The technocratic cannot foreclose or seek to dissipate political hostility to rights by pre-emptively reforming the HRA or ECHR. That hostility emanates from the sphere of kayfabe.

Conclusions

So how, if at all, can human rights defenders enter into the world of kayfabe? This is a question that I wish to ask, rather than to answer, as I don’t think I do have an answer. If I were to hazard a guess, I would suggest that one possible strategy could entail embracing and defending human rights on a normative basis that is undiluted by pragmatic concerns as to how this would play in front of focus groups. It would be a defence of human rights that co-opts a more pugilistic style, that moves beyond the pages of peer-reviewed journals into more accessible forums. Certainly, many such arguments may struggle to be covered by traditional media outlets due to their scepticism of the judicial protection of human rights and their preferential treatment of outputs by preferred think-tanks. One need only compare the extensive press coverage given to a report claiming that the Good Friday Agreement posed no barrier to the UK leaving the ECHR, with another concurrent report arguing the polar opposite to see this issue in action. One major advantage of the internet, however, is that there is a plethora of alternative outlets not reliant upon these gatekeepers and that are growing in prominence and influence. 

If there was a person capable of marrying this intellectual rigour with a style capable of cutting through and being heard above the kayfabe, it was Conor Gearty. Gearty was himself the embodiment of a journey from rights-sceptic to rights defender. If he was capable of convincing himself, he was capable of convincing anybody. And as a believer in both human rights and democracy, this gives me hope.

Alan Greene is a Reader in Constitutional Law and Human Rights at Birmingham Law School.

A paper on this topic this piece was presented at the 25 Years of the Human Rights Act Conference at the University of Leeds School of law on 18 September 2025. I am grateful to the audience for their helpful feedback, and to Lydia Morgan and Natasa Mavronicola for written comments on an earlier draft.

(Suggested citation: A. Greene, ‘Bringing facts to a vibes fight: Kayfabe and debates on the UK and the ECHR’, U.K. Const. L. Blog (9th October 2025) (available at https://ukconstitutionallaw.org/))