The Irony of British Human Rights Exceptionalism, 1948–1998

Abstract

Assessments of London’s relationship with Strasbourg tend to highlight recent discontent about perceived infringements of parliamentary sovereignty by the European Court of Human Rights. The British criticism is, in short, that this is not what we signed up for. But this complaint is not new. This Article argues against understanding this story as one in which this relationship only recently soured. A recurrent theme in the United Kingdom’s involvement with the institutions of the Council of Europe, especially its human rights commission and court, has been the dawning realization, again and again, that the treaties and institutions that the United Kingdom’s own lawyers and diplomats were so instrumental in devising for an emergent Council of Europe could and would be applied to its own foreign and domestic interests. It is ironic that the United Kingdom should have been so central to crafting human rights instruments from which it later sought to exempt itself. The irony is heightened by the frequency with which this founding member state realized, opposed, and then accepted the implications of its actions. An unexpected consequence of this ironic refrain of exceptionalism may be to reinforce the objective legitimacy of the system’s most challenged institutions. After all, it is hard to allege an infringement of parliamentary sovereignty if the state’s ministers repeatedly choose to abide by the (sometimes changing) treaty obligations they helped establish. On the other hand, when ministers in high dudgeon declare their outrage at the latest Strasbourg ruling, the erosion they facilitate to popular legitimacy may ultimately reduce overall respect for the European Convention. Ironically, we become the masks we wear.