Not the Great Repeal Bill…
Five years ago we posted a piece entitled ‘Church and State III – the European dimension’. Perhaps the title was misleading, but some people still don’t seem to be able to understand the difference between the Court of Justice of the European Union and the European Court of Human Rights, so the following is an updated version, without the references to freedom of religion and belief.
Introduction: the great divide
In the not-too-distant future, the Prime Minister will trigger Article 50 of the Treaty on the European Union and the UK will begin the process of withdrawal. EU law will cease to apply to the UK when the withdrawal agreement enters into force or two years after notifying the European Council of the intention to withdraw unless there is a unanimous agreement to extend the negotiations. The House of Commons Library has produced a helpful note on all this: see Brexit: how does the Article 50 process work?
Until 2019, however, we shall still be members of the EU – and the extent to which we shall be obliged to take account of judgments of the CJEU after Brexit is still something of an open question, depending on what kind of trade deals we negotiate. Likewise, it would appear that the Conservative Party might well include repeal of the Human Rights Act 1998 and, possibly, withdrawal from the European Convention of Human Rights in its manifesto for the 2020 General Election. (Although it is possible that a General Election could be held before this date, under the provisions of the Fixed Term Parliament Act 2011 that would raise a number of practical difficulties.)
As of now, we are still full members of both institutions; and what follows sets out the basic structure of the two major European institutions: the European Union (“EU”) and the Council of Europe (“CoE”). There also are other less well-known Europe-wide political institutions, such as the Organization for Security and Co-operation in Europe, but they are much less important terms of domestic law.
Opposite-sex civil partnerships, RE, funny handshakes – and some of the media still don’t understand the difference between Brussels and Strasbourg…
Opposite-sex civil partnerships? Not yet
Rebecca Steinfeld and Charles Keidan lost their appeal against the Administrative Court’s refusal to review the Government’s policy on the extension of civil partnerships to opposite-sex couples: see Steinfeld & Anor v Secretary of State for Education  EWCA Civ 81: we noted the decision here. Continue reading
So it’s goodbye to the EU, then…
… but not immediately
Article 50 of the Treaty on the European Union reads as follows:
- Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
- A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
- The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.
- For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.
- If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”
If a withdrawal agreement can be reached, it must be approved by the European Parliament and then by the Council, by Qualified Majority Voting. Continue reading
The Home Secretary has said that she wants the UK to withdraw from the ECHR and remain a member of the EU. But…
The Home Secretary, Theresa May, has argued that the UK should remain in the European Union but leave the European Convention on Human Rights. According to a report in The Guardian, she told a London audience at the weekend:
“The ECHR can bind the hands of Parliament, adds nothing to our prosperity, makes us less secure by preventing the deportation of dangerous foreign nationals – and does nothing to change the attitudes of governments like Russia’s when it comes to human rights. So regardless of the EU referendum, my view is this. If we want to reform human rights laws in this country, it isn’t the EU we should leave but the ECHR and the jurisdiction of its Court.
I can already hear certain people saying this means I’m against human rights. But human rights were not invented in 1950, when the Convention was drafted, or in 1998, when it was incorporated into our law through the Human Rights Act … A true British Bill of Rights – decided by Parliament and amended by Parliament – would protect not only the rights set out in the Convention but could include traditional British rights not protected by the ECHR, such as the right to trial by jury.”
Immediate reactions from both camps in the referendum debate seem to have been critical. According to a report in The Guardian, David Davis, Conservative MP and former shadow Home Secretary – and a supporter of Brexit – said that May’s position was “extraordinarily inconsistent”: Continue reading
A mixed bag: same-sex marriage in Northern Ireland, possible withdrawal from the ECHR, Jeremy Pemberton loses his employment claim, a couple of interesting consistory cases – and more…
Northern Ireland and same-sex marriage
On Monday, the Northern Ireland Assembly debated a joint SDLP-Sinn Féin private Member’s motion calling on the Executive to table legislation to allow for same-sex marriage. The motion was carried by a margin of one vote – Ayes 53: Noes 52 – but because the Democratic Unionists had invoked another “petition of concern”, as on previous occasions when the matter has been discussed, the motion was negatived because it did not have cross-community support.
Dominic Grieve on withdrawal from the ECHR
The Justice Sub-Committee of the House of Lords Select Committee on the European Union has published an unrevised transcript of evidence from Aidan O’Neill QC, Dominic Grieve QC MP and Martin Howe QC in the course of its inquiry into the impact on EU law of repealing the Human Rights Act. In the course of the hearing, Dominic Grieve confirmed our own suspicions about the legal consequences of withdrawal: Continue reading