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Freedom of Conscience, Religion, or Belief in Europe

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The CJEU and the ECtHR: an Idiot’s Guide

Law & Religion UK - Posted 27 February 2017 by Frank Cranmer

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”)... more