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Brexit - will decisions of the European Court of Justice and the European Court of Human Rights Be Affected?
Whilst much has been made by the 'leave' campaigners about the fact that Brexit will impact on interference by the European Court of Human Rights (ECtHR) in decisions of the UK courts, this is not correct.
What has been overlooked in many of the debates is the fact that whether we exit the EU or not, this will not affect the fact that the UK is bound by common law which implies many fundamental rights,and we also signed up the the European Convention on Human Rights ('ECHR') before the EU even existed. We are one of 47 nations (including Russia) to have signed up to the Council of Europe which is entirely independent of the EU and which administers the ECHR. We also have primary legislation in the UK called the Human Rights Act 1998 which specifically incorporates the ECHR
To be free of the interference of the ECtHR we would have to repeal/amend the Human Rights Act and remove ourselves from the Council of Europe and the ECHR and if we did, is it likely that many countries would want do business with us? After all, the barriers to Turkey being ushered into the EU have consistently been their Human Rights record, so if we publicly say we will not sign up to the Council of Europe and the ECHR what signal does this send?
Two recent employment cases have shown us that whilst similar arguments can be brought in two separate European Courts, one of them would automatically be affected in the event that Britain votes to leave the EU on 23 June 2016 and the other will not. Both involved dress codes and both involved the right to visibly display signs of faith, but argued in different ways:
Eweida v British Airways
Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms says that employees have the right to visibly display signs of their faith and Article 14 which says they should be free from discrimination in the exercise of this freedom.
Ms Eweida was, in breach of those rights, prevented from wearing a cross at work, as a Christian, because BA had (but has since changed) a corporate dress code banning the wearing of jewellry on the grounds of maintaining their corporate image.
The ECtHR agreed with Ms Eweida, saying that the ban was not proportionate and the UK courts had given too much weight to the need for BA to maintain its corporate image, especially given the lack of any evidence to support the fact that a discrete cross had any effect on the corporate image or encroached on the interests of others.
If the UK left the EU, Ms Eweida would still have been able to bring her claim before the ECtHR under the ECHR.
Compare this with the recent ECJ case:
Achbita v G4S
In 1973 the UK gave up the right to have the final say in relation to employment and discrimination law. UK courts must have regard to European treaties, laws and decisions of the European Court of Justice (‘ECJ’) when bringing in legislation and making decisions. All discrimination law (except for equal pay) is contained within three EU Directives and the UK Government is expected to bring in and enforce laws which reflect these.
Whilst this was a case in Belgium, it could just as easily have been one in the UK: Ms Achbita was a Muslim receptionist in Belgium who wanted to wear an Islamic headscarf but G4S had rules banning employees wearing any religious, political or philosophical symbols while on duty, to ensure neutrality at work. The Belgium Court of Appeal asked the ECJ to rule on whether a ban on female Muslim employees wearing a headscarf at work constituted direct discrimination contrary to EU law? It was accepted that although indirect discriminatory, it could probably be justified given the policy of neutrality.
The ECJ’s Advocate General has given her opinion, which the ECJ can either agree with or ignore. She said that it was not direct discrimination and even if it had been, the ban could be justified under the ‘genuine and determining occupational requirement’ exemption. She believed that it was proportionate to require compliance with a dress code that gave effect to the employer’s strict policy of neutrality but it would be for the courts in Belgium to consider whether the policy in fact caused undue prejudice to employees taking various factors into consideration.
If this had been a UK case, then Britain leaving the EU would fundamentally affect the outcome of this case because if we left, the final view of the ECJ would be irrelevant as the UK would no longer have surrendered sovereignty to the EU on these points.The practical effect would be that the Supreme Court in the UK will have the final word in cases.
Therefore, as leaving the EU is unlikely to have any effect on challenges through the ECtHR, perhaps more cases will be heading in that direction as a result?