Britain and European Human Rights Law: An Author’s Apology

In four books published between 1990 and 2008, I, along with my two co-authors, was very optimistic about the up-ward trajectory of European human rights law, opining that a ‘critical moment’ in the accepted legitimacy of the European Court of Human Rights had been passed. Now that Britain has ‘brexited’ the European Union, it is not implausible that Britain, and perhaps other states, will leave some or all of the Strasbourg European human rights legal system. How could I have gotten my prognosis, especially about Britain, so dreadfully wrong? This essay puts the error of my ways down to two causes. First is what I term the position of the ‘nostalgia nation’ vis-à-vis integration. I misjudged the ability of modern Britain to escape the embrace of its lost empire and relative political and cultural eminence. The Conservative Party in particular has been remarkably unyielding in its nostalgia for ‘great’ Britain rather than accommodate the country to a more middling international status, hence a desire to ‘go it alone’. Second, is my personal failing in being trapped in a ‘bubble’ of optimism about the inevitable progress of international human rights law. This mind-set I deem a ‘Whiggish’ view of history which induced me to count up positive factors about international law more adequately than I counted up negative influences. The good news, of course, is that Britain has so far not formally reduced its commitment to European human rights law and to the Strasbourg Court. I, of course, hope that Britain will remain a full and active member of the Strasbourg system.