Introduction: the great divide
For some people, the mere mention of “Europe” and/or “human rights” is like a red rag to a bull; and the fact that people often seem to be fairly shaky on the detail helps matters not at all. So what follows is an attempt to inform debate by setting out the basic structure of the two major European institutions: the European Union (“EU”) and the Council of Europe (“CoE”: no relation to any ecclesiastical organisation with similar initials). There are other less well-known Europe-wide political institutions, such as the Organization for Security and Co-operation in Europe, but they are of no great interest to students of law and religion.
The EU and the CoE both have ministerial councils, permanent secretariats of officials, courts to determine disputes and assemblies of parliamentarians – but their functions, organisations and legal foundations are very different. You must not confuse the two – and in any case, why bother when there are umpteen muddle-headed politicians around who will confuse them for you gratis without you even needing to ask?.
The European Union
What is now the European Union developed in stages from the original European Coal and Steel Community established in 1951 with the principal intention of creating economic ties between France and West Germany in order to make future conflict less likely. The EU developed through agreements defined in a number of treaties relating to the member states within the EU and its method of operation. Today, the principal treaties are the Treaty on European Union (“TEU”) and the Treaty on the Functioning of the European Union (“TFEU”).
Although there were proposals to include reference to Christianity in the Preamble to the (unsuccessful) European Constitution and subsequent Treaty of Lisbon they were not accepted; and the EU remains a secular institution with no formal links with any religion or references to religion within its legislation. However, Article 17 TFEU states that:
“1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.
2. The Union equally respects the status under national law of philosophical and non-confessional organisations.
3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations”.
Details of this dialogue are given on the website of the Commission’s Bureau of Policy Advisers (“BEPA”).
The EU operates through several distinct institutions, the most important of which, for our purposes are as follows:
- The European Council is composed of the heads of government of the member states, its permanent President – currently Herman van Rompuy – and the President of the European Commission: the permanent High Representative for Foreign Affairs and Security Policy – currently Baroness Cathy Ashton – also takes part in its meetings.
It is not to be confused with…
- The Council of the European Union (sometimes just called “the Council” and sometimes still referred to as “the Council of Ministers”) which consists of ministers of the member states, with a varying membership depending on the matters under discussion – ECOFIN, for example, is the regular meeting of finance ministers. The Presidency rotates every six months among the governments of the member states – except that the Foreign Affairs Council is chaired by the EU’s High Representative.
- The European Commission, often described as “the Guardian of the Treaties”, is based in Brussels. (The term “Commission” is used to refer both to the members of the Commission appointed by the member states and Parliament and to the institution itself and its staff, who are organised into departments. The Commission operates at a supranational level, and has three major functions (Article 17 TEU):
- to initiate Community action by making legislative proposals;
- to police and enforce EU legislation; and
- to act as the executive of the Community.
- The European Parliament holds plenary sessions in both Strasbourg and Brussels and committee meetings in Brussels: an arrangement referred to as “the travelling circus” (and just to make life hell for officials its secretariat is based in Luxembourg). It is directly elected by the people of the twenty-seven member states, each determining the method of election of its MEPs. The majority of decisions are now made by co-decision, which is now called the ”ordinary legislative procedure”.
- The European Economic and Social Committee (“ECOSOC”) is a consultative body of representative of employers, workers and other interest groups.
- The Court of Justice of the European Union (CJEU) is based in Luxembourg and adjudicates disputes.
Human rights generally are enumerated in the Charter of Fundamental Rights of the European Union of December 2000 which came into full effect with the entry into force of the Treaty of Lisbon on 1 December 2009. Article 6 (TEU) of the consolidated text of the Treaty on European Union declares that
“1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.
2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.
In addition to its human rights provisions, in order to exercise the EU’s competences its Institutions are empowered to adopt a range of legislative acts: regulations, directives, decisions, recommendations and opinions (Article 288 TFEU):
- A regulation has general application, it is binding in its entirety and it is directly applicable in all member states.
- A directive is binding upon each member state to which it is addressed as to the result to be achieved but leaves to the national authorities the choice of form and methods.
- A decision is binding in its entirety: a decision which specifies those to whom it is addressed is binding only on them.
- Recommendations and opinions have no binding force.
The Council of Europe
The Council of Europe, based in Strasbourg, was established on 5 May 1949 by ten countries: the United Kingdom was one of the founder-members. It now includes 47 member states, ranging in size from the Russian Federation to San Marino, and covers virtually the whole of European continent – the exceptions being Belarus and the Vatican – and a large chunk of Asia stretching to Sakhalin in the North Pacific. It seeks to develop common and democratic principles throughout Europe based primarily on the Convention for the Protection of Human Rights and Fundamental Freedoms (commonly known as the European Convention on Human Rights or ECHR), for which it carries particular responsibility and to which all member states are parties. Like the EU, the CoE has a multiplicity of institutions:
In addition, the CoE maintains a permanent advisory expert group on constitutional matters for which there is no parallel among the institutions of the EU: the European Commission for Democracy through Law, otherwise known as the Venice Commission, conducts studies and gives expert opinions on specific issues, sometimes involving religion: see, for example, its recent Opinion on the Law on Freedom of Religious Belief of the Republic of Azerbaijan.
“Religion and belief” under the two systems
Unsurprisingly, there is little detectable difference between the positions of the EU and the CoE in relation to religion and human rights.
Article 9 ECHR (Freedom of thought, conscience and religion) reads as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others”.
In addition, Article 14 (Prohibition of discrimination) declares that:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
Article 10 (Freedom of thought, conscience and religion) of the Charter of Fundamental Rights of the European Union declares in very similar terms that:
“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 recognised, in accordance with the national laws governing the exercise of this right”.
Article 21(1) (Non-discrimination) declares that:
“Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”.
The two courts: the ECtHR
The ECtHR in Strasbourg was established under the Convention of 1950 to monitor respect of human rights by states parties to the ECHR. Applications against states parties for human rights violations can be brought before the ECtHR by other states, by other parties or by individuals. (Previously, there was also a European Commission of Human Rights, elected by the Committee of Ministers, that acted as a filter-mechanism for cases by deciding whether or not a petition to the Court was admissible: it was abolished when the ECtHR was restructured in 1998.)
The ECtHR comprises a judge from each member state. When a vacancy occurs the government of the state concerned nominates three candidates for the empty seat; but it is the Parliamentary Assembly that fills the vacancy by electing one of the three nominated candidates. (Presumably the reason why the British press frequently describes the members of the Court as “unelected judges” is because your average journo has never bothered to read Article 39 ECHR.)
The Court normally sits in Chambers of seven judges; but if a sectional Chamber feels that a particular case referred to it raises a serious question affecting the interpretation of the Convention or if there is a risk of inconsistency with a previous judgment of the Court it may relinquish jurisdiction to the Grand Chamber of 17 judges, consisting of the Court’s President and Vice-Presidents, the Section Presidents and the national judge (if not otherwise eligible) together with other judges selected by lot to bring up the number to 17.
After a Chamber judgment has been delivered, the parties may request referral of the case to the Grand Chamber. Such requests are accepted on an exceptional basis: a panel of judges of the Grand Chamber decides whether or not the case should be referred to the Grand Chamber for fresh consideration.
At the end of the hearing, the judges give their judgments: while one member of the Court will probably give the lead judgment for the majority, concurring and dissenting judgments are also delivered and recorded, in the same style as judgments in the UK and Ireland.
The two courts: the CJEU
The Court of Justice of the European Union was previously known as the European Court of Justice. Its primary functions are to interpret EU law to ensure consistency across all EU countries and to settle disputes between member states and EU institutions – often as a result of “infraction proceedings” brought by the Commission against a member state. Individuals, companies or organisations can also bring cases before the Court if they believe that their rights have been infringed by an EU institution. In addition, a national court may interrupt a case and refer a point of EU law to the CJEU for a ruling.
As well as the CJEU itself, there is also a General Court (which used to be known as the Court of First Instance) with its own judges to hear cases brought by private individuals, companies and some organisations, and cases relating to competition law.
Each member state nominates one judge to the CJEU and one judge to the General Court. In addition, there are eight Advocates-General: the A-G for a particular case presents an opinion to the Court as a kind of amicus curiae.
The Court may sit either as a Grand Chamber of 15 judges (including the President and Vice-President) or in chambers of three or five judges. Grand Chamber sittings are rare.
At the end of the hearing, the Court pronounces a single judgment: dissents are not recorded.
The two courts: the differences
EU law is binding on member states
For the United Kingdom, s 2(1) of the European Communities Act 1972 as amended declares that:
“All … rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly…”.
For an example in which the House of Lords held, in effect, that EU law overrode the provisions of the Merchant Shipping Act 1988 relating to ownership and registration of fishing boats see R v Secretary of State for Transport, ex p. Factortame Ltd (No. 2)  UKHL 13 (11 October 1990). And because EU law is binding, so are the judgments of the CJEU because they are part of EU law,
The domestic effect of judgments of the ECtHR is equivocal
Section 2(1) of the Human Rights Act 1998 declares that
“(1) A court or tribunal determining a question which has arisen in connection with a Convention right must take into account any—
(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights…” [emphasis added].
Precisely what “must take into account” means in practice has been the subject of considerable domestic debate. In a famously-pithy judgment in the House of Lords the late, lamented Lord Rodger of Earlsferry dismissed the appeal in Secretary of State for the Home Department v AF & Anor  UKHL 28 (10 June 2009) like this:
“Even though we are dealing with rights under a United Kingdom statute, in reality, we have no choice: Argentoratum locutum, iudicium finitum – Strasbourg has spoken, the case is closed”.
In his evidence to the House of Lords Constitution Committee in October 2011, however, Lord Judge LCJ said this:
“Strasbourg should not always win… There is yet a debate to happen, it will have to happen in the Supreme Court, about what we really do mean in the Human Rights Act, what Parliament means… when it said that the courts in this country must take account of the European Court of Human Rights. I myself think it is at least arguable that having taken account of the decision of the court in Strasbourg our courts are not bound by them. Give them due weight and in most cases follow them, but not necessarily”.
Others have been much more fundamentally critical of what they see as a tendency for the ECtHR to give an insufficient margin of appreciation to national governments and domestic courts: see, for example, Jonathan Sumption QC (as he then was) in his FA Mann Lecture 2011:
“[T]he Strasbourg Court endeavours not only to interpret the Convention but to apply it in a uniform manner throughout the 47 states which subscribe to it. This approach conflicts with some very basic principles on which human societies are organised. National communities are diverse, even within a region such as Europe with a strong common identity. Their collective values are the product of their particular culture and history. Rights are necessarily claims against the claimant’s own community, and in a democracy they depend for their legitimacy on a measure of recognition by that community. A principled objection to extreme exercises of state power, such as military government, torture or imprisonment without trial is no doubt common to every state party to the Convention. But the Strasbourg Court has treated the Convention not just as a safeguard against arbitrary and despotic exercises of state power but as a template for most aspects of human life. These include many matters which are governed by no compelling moral considerations one way or the other”.
References from domestic jurisdictions
National courts may refer issues to the CJEU for a ruling: there is no procedure for any such reference by a domestic court to the ECtHR – though paragraph 12(d) the Brighton Declaration of the High Level Conference on the Future of the European Court of Human Rights in April 2012 proposes that such a procedure should be introduced.
As we have seen, the procedure of the ECtHR provides for dissenting and concurring judgments while the procedure of the CJEU does not.
The difference in a nutshell
In the words of Lord Judge LCJ to the House of Lords Constitution Committee: “the distinction is very clear. Luxembourg Communities—binding; Strasbourg Convention—’take account of’.”
Convergence? – and a final comment
David Hart QC points out in his helpful bluffer’s guide to human rights courts on UKHRB that
“[S]ome arguments simply go down better with the “civil” lawyers who make up most of the judges on the Court – “civil” as opposed to the common-law (or judge-made) tradition in which the UK [and Ireland] operates. Our domestic judges have become far more accustomed to dealing with some of the broad principles of EU law (such as proportionality or judicial effectiveness), but even so a supranational court may be more receptive to arguments which, say, threaten some sacred cow of common-law rule-making which looks a bit odd from a continental perspective.”
Which leads one to wonder whether some of the more extreme phobic reactions to the ECtHR in particular might not simply be based on cultural difference.
But be that as it may, Article 6 of the consolidated text of the Treaty on European Union quoted above commits the EU to acceding to the ECHR and declares that fundamental rights as guaranteed by the ECHR are part of the general principles of EU law. The EU has not yet acceded but, even so, the CJEU refers to the case-law of the ECtHR and treats the ECHR as if it was part of the EU’s legal system – and, in any case, many of the Articles of the EU’s own Charter of Fundamental Rights echo the terms of the ECHR. When the EU accedes to the Convention in its own right, however, the CJEU will presumably be bound formally by the jurisprudence of the ECtHR.
An interesting question arises as to how the interaction between the EU and the jurisprudence of the ECtHR impacts on the domestic law of member states. If “[f]undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … shall constitute general principles of the Union’s law”, then does a member state of the EU have any option not to be a signatory to the ECHR? And even if it does have that option, does it matter anyway given that an EU member state would appear to be bound by the terms of the ECHR even if chooses to withdraw from the CoE and the Convention? Not such a hypothetical question, given the controversy around the run-up to the recent report of the Commission on a Bill of Rights.
All of which leads one to wonder whether the argument over the “UK Bill of Rights” might not be something of a sham fight.