How will a Brexit impact religious freedom in Britain?

This weekend is a long weekend in Sydney, because it celebrates the Queen’s birthday. Which Queen? The Queen of Australia, Canada, New Zealand and 13 other nations around the world, of course! It isn’t literally her birthday. It’s a date chosen to fit in with our schedules, rather than the other way around. She may be queen, but it’s still our long weekend, after all! That it happens to give me a long weekend around my actual birthday every year, well that is sincerely appreciated. Yes, with the Queen or without her, I turned another year older this week. But that is small potatoes compared to what is coming up. In two weeks time the Queen, and all her British subjects, are making a rather momentous decision – should they, or should they not, remain a member state of the European Union – the experiment that has morphed into an effort to create a Europe-wide super state.

Introduction

On June 23, 2016, for the first time since the mid-70s, British voters will determine whether the United Kingdom (UK) will remain a member of the European Union (EU). In the four decades since, the EU has changed dramatically – becoming more powerful, more complex, pushing for ever greater regulatory integration of its member states which more than double the original number.

In the lead up to the vote, there is substantial debate over the economic, foreign policy, defense, cultural and human rights implications of the UK leaving the EU. On the margins of this debate is a discussion of what a British exit from the EU (a “Brexit”) will mean for the future of religious freedom in the UK.

This article explains why a Brexit is highly unlikely to impact religious freedom negatively in the UK, and may well increase it, for four primary reasons:

• The EU’s dominant states with the most influence on the interpretation and implementation of EU instruments have religious freedom records substantially worse than the UK’s;
• The values and politics of member states, rather than aspirational statements in the various international bodies, determines how the EU treats religious freedom;
• The EU’s approach to human rights is more likely to be used to limit religious freedom in the UK than to expand it;
• Regardless of Brexit, the UK will continue to be a member of the European Court of Human Rights is operated by the Council of Europe, which is a separate organisation from the EU.

Religious freedom is, of course, only one human right. However, the analysis followed in this paper can be applied to a variety of other fundamental rights with a similar outcome.

The Dominant EU States Restrict Religion

The highly respected Pew Research Center released a report in 2015 ranking the level of restriction on religion in nations around the world. The report breaks nations into four categories: those with very high, high, moderate and low restrictions on religion.[1]

Germany, the largest and most influential member of the EU, has “high restrictions” on religion, reports Pew. The US State Department reports that among these restrictions are state bans on Muslim women wearing headscarves, the use of “sect screening” to prevent people from disfavored faiths being hired for public employment and the refusal to recognize Jehovah’s Witnesses as a church, although they are routinely registered in many liberal western nations. Jehovah’s Witnesses, it is worth noting, have a particularly tragic history in Germany that would, one might think, make modern authorities sensitive to their treatment. Specifically, the US Holocaust Museum reports: “Jehovah’s Witnesses were subjected to intense persecution under the Nazi regime.”

Unfortunately, Germany isn’t the only EU nation in the “high restrictions” category in the Pew report. Many other EU member states fall into the “moderate restrictions” category – from France to Spain, Belgium to Greece. None of which is surprising to religious freedom experts familiar with the complex maze of religious regulations, restrictions, and preferences that define the European regulatory approach to religion.

However, there is one EU nation among the EU’s three most populous that stands out. Pew reports it has among the lowest restrictions on religion in the world. And it also has among the highest levels of religious diversity in Europe. The nation? The UK.

Today, there are those arguing that a Brexit will negatively impact Britain’s dedication to religious freedom. They point to the EU’s instruments and institutions designed to protect fundamental human rights, and ask how the British can hope to maintain their freedom without these protections. As we shall see, however, a Brexit is, on balance, more likely to protect Britain’s liberal attitude towards religious minorities than to harm it.

Culture, Not Words, Protect Freedom

The state of a nation’s practical treatment of religious diversity has little to do with supranational instruments or institutions. China and Iran are both members of the UN, and therefore have agreed to support the Universal Declaration of Human Rights with its guarantees of religious freedom. It reality, this designation does not mean that either provides actual religious freedom.

Even in the EU, as Pew reports, the levels of religious freedom dramatically vary because freedoms must be interpreted and implemented by national governments. And national and regional governments reflect different histories, sensibilities, and political realities.

The UK’s approach to religious diversity has far more in common with Australia, Canada, New Zealand and South Africa, all of whom Pew reports are among the group of nations with the lowest restrictions on religion. All of these share elements of a common culture, which the UK resembles more than highly restrictive EU states like Romania.

If the UK leaves the EU, will its exceptional dedication to religious freedom disappear? The evidence suggests not. New Zealand and Canada aren’t part of an EU, and yet their liberal approach to religious freedom mirrors the UK. There is no reason to believe the UK would, on leaving the EU, all of a sudden adopt the restrictive Romanian or German approaches to religious freedom. Indeed, common sense tells us the opposite to be true. That is, the less the UK is bound to restrictive EU nations, the less likely it is restrictive.

Fine Line Between Legal Shield and Sword

But what about EU human rights instruments and institutions? Won’t the UK lose the protections they provide?

While, like the UN, there is a lot of high-minded rhetoric supporting the EU’s human rights endeavor, the devil is in the details. It is worth asking whether these details of interpretation and implementation will be more likely to reflect the majority EU member state’s restrictive approach to religion or the UK’s minority liberal approach?

There is also a second danger emanating from the EU. In recent years, human rights regulations and procedures have increasingly become swords used to restrict religious freedom rather than shields used to protect it. This trend is particularly popular among intellectual elites who tend to be less religious than the general population and who view religion as part of the problem rather than a vital part of a healthy, vibrant, balanced culture.

So, when evaluating the future of religious freedom, we must ask who do we think more likely to impinge on religious freedom under the cloak of human rights – the EU’s unelected, unaccountable Eurocrats or British Members of Parliament who are directly accountable to their religiously diverse constituents?

What About the European Court of Human Rights?

After leaving the EU, UK citizens will continue to be able to bring cases to the European Court of Human Rights, because this court is not part of the EU. Rather the Court is part of a different organization called the Council of Europe. Many nations that are not EU member states – including countries like Russia, Turkey, and Azerbaijan – are members of the Council of Europe. All up, the Council includes 19 nations that are not members of the EU and 28 they are.

Six nations provide 65% of the budget of the Council of Europe; two of those nations (Russia and Turkey) are non-EU members. The UK is among these six primary funders. Should the UK leave the EU, the UK will continue to fund the Council with the only difference being that half of the funders will now be non-EU member states.

The Council of Europe has a different legislative body than the EU and a different administrative structure. Naturally this nomenclature is confusing, but the EU has a subsidiary body called the European Council, which is also not the Council of Europe.

It is not surprisingly, therefore, that some people fear that leaving the EU will deny UK citizens access to the European Court of Human Rights. That is an unfounded fear. The UK will remain a member of the Council of Europe and its associated entity, the European Court of Human Rights. Leaving the EU does not change this.

The European Court of Human Rights will remain available to UK citizens after the Brexit.

Conclusion

There is no 100% guarantee of religious freedom. Although all cultures, irrespective of high-minded charters, speeches or aspirations, have been guilty of religious persecution, repression, and discrimination, including the UK, the UK enjoys a substantially higher state of religious freedom than either of the two dominant nations in the EU (Germany and France), and more than the bulk of other EU nations.

It is naïve to expect EU institutions to advance a view of religious freedom substantially out of step with the French and German view and in line with Britain’s more liberal approach. Leaving the EU will, if anything, confirm Britain in its liberality rather than tie it to EU restrictive attitudes. Further, the way a state treats religious freedom has more to do with local culture and politics than supranational charters.

If the UK remains, there is a danger that EU human rights regiments will become swords used to restrict the religious freedom of the citizens of the UK. Finally, a Brexit will not impact the UK’s membership of the Council of Europe or the availability of the European Court of Human Rights.

This analysis involving religious freedom can similarly be run for other fundamental rights, producing similar results.

[1] Pew Research Center, Latest Trends in Religious Restrictions and Hostilities, Released February 26, 2015, p. 50 ­ 52.

James Standish is an American lawyer who resides in Australia. He previously served as executive director of the US Commission on International Religious Freedom and secretary of the UN NGO Committee on Freedom of Religion or Belief and is currently Director of Communications and Public Affairs for the Seventh-day Adventist Church in the South Pacific.

Photo credit: DepositPhotos.com / Anizza