Religious liberty implications of Brexit

By Dr. Brighton Kavaloh and Dr. George Clerk 

What are the implications for religious liberty if Britain exits the European Union?

Introduction

A referendum will be held on Thursday 23^rd June 2016 to decide whether Britain should leave or remain in the European Union. The debate so far has been focused on political, economic and immigration issues. This article is designed to clarify particularly what the implications of Britain exiting the European Union, or Brexit, would be for religious liberty to its citizens.

Prime Minister David Cameron promised to hold a referendum mainly in response to growing calls from his own conservative MP’s and the UK Independence Party (UKIP), who argued that Britain has not had a say since 1975 when it voted in a referendum to stay in the EU. The EU Referendum Act 2015 was enacted to make provision for the holding of the referendum in the United Kingdom and Gibraltar.

Background

The origins of the European Union dates back to 1957 with the Treaty of Rome. This was followed subsequently by treaties of Maastricht (1992), Amsterdam (1997) and Nice (2000). The treaties developed the EU from a loose free trade area into a common market, with the possibility for further integration. The administration of the EU is performed by its institutions, namely

1. European Commission – Cabinet of the EU
2. European Council – Consists of representatives of each Member State at ministerial level.
3. European Parliament – Members of the European Parliament (MEP’s) from amongst member states and elected every five years.
4. European Court of Justice – A two-tiered judicial system consisting of the Court of Justice and the Court of First Instance. All the judges are independent their Member States.
5. The Court of Auditors – Formed by the Treaty of Maastricht. Its purpose is to approve the accounts of EU institutions.

The source of European Union law is primarily the Treaty Articles and secondary sources, regulations, directives, decisions and recommendations/opinions.

Religious Liberty and the EU

As noted earlier much of the focus in the campaign to leave or stay has been mainly on issues such as sovereignty, but the religious liberty issues have not been addressed. Section 7 of the EU Referendum Act 2015 requires that the Secretary of State provides information about rights and obligations as a result of the United Kingdom’s membership of the European Union. [pullquote align="right" cite="" link="" color="" class="" size=""]Much of the focus has been on the issue1. The disputed point between parties in a lawsuit; 2. To send out officially, as in a court issuing an order. of sovereignty, but the religious liberty issues have not been addressed.[/pullquote]

The legal framework for religious liberty is provided in Article 2 of the Treaty of the EU, which states that:

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities…”

Also, Charter of Fundamental Rights of the European Union, Article 10, stipulates:

1. “Everyone has the right to freedom of thought, conscience, and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice, and observance.

2. The right to conscientious objection is recognized, in accordance with the national laws governing the exercise of this right.”

It is important to point out that the above rights, which are enshrined in the EU law, are intended to benefit citizens of Member States.

Religious Liberty and Brexit

There are three main strands of arguments in the EU referendum, which are to remain in the EU, to leave the EU, or to remain in the EU but exit the European Convention on Human Rights (ECHR).

By remaining in the European Union, citizens of the UK stand to benefit from the legal protections of the Charter cited above. However, if we Brexit, we forfeit these protections. Though this might generally seem the case, it is not such a simple matter. In addition to the Charter, there is the European Convention on Human Rights, which provides protection for citizens of Member States. The Convention is incorporated in the UK Human Rights Act 1998. The European Court of Human Rights (ECtHR) adjudicates on cases brought by citizens of member states, for example, Eweida and Others v the United Kingdom (2013). However, the ECtHR does not have enforcement powers, which has sometimes made it somewhat ineffective in ensuring that its rulings are upheldThe appellate court agrees with the lower court decision and allows it to stand. in member states, for example, Hirst v the United Kingdom, (No 2) [2005] ECHR 681 (2005)[pullquote align="left" cite="" link="" color="" class="" size=""]If Britain exits the EU, its citizens will not benefit from the enforcement of charter or convention rights. [/pullquote]

There are indications that the EU intends to become a signatory to the Convention as well as its member states, which means that Convention rights will much more easily be enforced under EU law. If Britain exits the EU, its citizens will not benefit from the enforcement of charter or convention rights. They could be left with no alternative legal institutions other than their government for seeking redress. The national courts may remain the only place where these grievances could be checked.

The big argument for leaving the EU is that we would regain full national sovereignty and the right as a country to make our laws. However, what provisions will be made for religious liberty if we leave, and what safeguards will be put in place is a question that needs further consideration.

Dr. Brighton G Kavaloh is the Director of Public Affairs and Religious Liberty for the South England Conference of Seventh-day Adventists. In addition to extensive theological training, Dr. Kavaloh has completed an MA Degree in International Studies & Diplomacy at the Centre for International Studies & Diplomacy – University of London (2003); and subsequently pursued a course in International Legal Studies at the Law School of the University of East London where he was awarded a Master of Laws (LLM) Degree with Distinction in 2005. He also completed an Extra Mural Diploma in Legal Studies in Human Rights and European Union Law and graduated with Distinction from Birkbeck – University of London. 

Dr. George Clerk is the Administration and Development Officer, providing presentation and research work for Adventreligio-Legal Perspectives  (Adventrlp.com), an organization that provides critical Religio-Legal analysis on current events and legislation that impact religious freedom for all people in the United Kingdom and Europe.

Illustration: DepositPhotos.com / tonsnoel