On 19 October the House of Lords gave a second reading to the Arbitration and Mediation Services (Equality) Bill, a private Peer’s bill introduced by Baroness Cox – see HL Deb 19 Oct 2012 c 1682 ff. Though the term does not appear anywhere in the text of the Bill, it is clear that her primary concern is what she perceives to be unequal treatment of women by tribunals operating under sharia.
Baroness Cox said that her Bill sought to address two fundamental concerns:
“the development of a parallel quasi-legal system based on inherently discriminatory principles [which] may involve proceedings operating under the terms of the Arbitration Act or it may involve less formal community forums for resolving disputes”; and
“the … related concern that many women suffer from gender discrimination in these contexts”.
She conceded that some sharia tribunals operated in ways that were unproblematic but suggested that others gave cause for concern. She was particularly concerned at the disparity between the ṭalāq divorce for husbands and the khula divorce for wives.
She explained that her Bill
“… does not interfere in the internal theological affairs of religious groups. If people wish to submit voluntarily to the rulings of any body, religious or otherwise, even if that means surrendering their rights under English law, they are free to do so. The Bill does not force them to give up religious law or abnegate conscience in favour of the law of the land. The Bill also recognises existing legally sanctioned forums for arbitration, including Muslim arbitration tribunals or MATs and various forms of mediation available in religious or secular contexts. The Bill will not affect the continuation of these provisions or their growth and development in accordance with the law of the land”.
Her specific concerns about the operation of the Arbitration Act 1996 were primarily that some tribunals were
“… practising sex discrimination. For example, a tribunal in Nuneaton adjudicated on an inheritance dispute between three sisters and two brothers and, in accordance with sharia law principles, the men were given double the inheritance of the women”.
She alleged that some arbitration tribunals were acting outside their legal remit, including criminal matters. Her Bill would make it a criminal offence to claim legal jurisdiction falsely; and any person purporting to arbitrate in any matter within the jurisdiction of the criminal courts would be liable on conviction to a maximum penalty of five years in prison. She also voiced her suspicion that “many women wrongly that think these informal tribunals are real courts and submit to their rulings accordingly” and appeared to be concerned about the lack of an appeal mechanism in sharia tribunals and the lack of control over the appointment of judges.
Though she accepted that the proposals in the Bill were not without flaw and required some amendment, overall they were intended:
- where a negotiated agreement is formalised in a consent order, to make it easier to set aside that order if it was reached under duress, or where a party’s consent was not genuinely informed;
- to make it easier for women to apply to the courts to have discriminatory rulings overturned on the grounds of gender discrimination;
- to strengthen the power of the police and courts to protect victims of domestic violence from coercion and intimidation; and
- to enhance the public sector equality duty by encouraging police, social workers and healthcare workers interacting with Muslim women to explain to them the advantages of civil marriage in addition to the Islamic nikah.
In a typically-thoughtful speech, Lord Carlile of Berriew expressed considerable reservations about
“… any form of mediation or arbitration that grants to people who do not have fully informed consent rights any less than they would be able to obtain through the ordinary courts of the land. In the sharia tribunals that I have been able to examine through the evidence that has been placed before me … [w]omen are not told that they have a right to a much higher level of provision from their husbands after divorce … In many instances, women are not told that in the sharia court they may have a lesser right to custody and residence of their children and that they should go the civil courts if they want to have their full rights under the law of the land”.
He suggested that the House might usefully consider whether England and Wales should adopt at least some of the provisions of the Ontario Family Statute Law Amendment Act 2009 under which, he surmised, any decision made by a third party in arbitration or other proceedings had no legal effect unless exclusively in accordance with the law of Ontario or of another Canadian jurisdiction. He had particular concerns that Muslim arbitration tribunals had strayed into criminal law, particularly in relation to its impact upon women. He was also concerned about the lack of rights of appeal and the lack of detailed reasons being given in writing.
The Bishop of Manchester suggested that the functioning of religious courts in the United Kingdom required greater discussion and research. He noted that the briefing produced for the debate by the British Academy’s Policy Centre stated that:
“There are substantial gaps in our understanding of how minority legal orders are being adapted, interpreted and applied, and we know very little about the experience of their users. There is need for research on the interrelationship between these orders and the state legal system. This argues for extreme caution in proposing legislation that can significantly impact on any of these orders”.
He suggested four questions:
- did the problems that the Bill was designed to address require fresh legislation or was sufficient redress already available under existing discrimination law and the Equality Act, given that the High Court would not enforce an arbitration award that had been obtained unfairly and where coercion, tacit or explicit, was involved?
- what would be the impact of the creation in Part 5 of the new criminal offence committed by arbitrators purporting to exercise a judicial function in family matters on the work of family law arbitration schemes?
- was there sufficient evidence to show that, for those sharia councils that might be claiming false jurisdiction on criminal and family cases, making such conduct a specific criminal offence was the best way of preventing it from happening?
- was the trend towards non-legally-recognised marriages likely to be stemmed through legislation, and specifically through the measures included in the Bill?
On the last point, he was concerned that the legislative solution proposed in the Bill could have the opposite and unintended effect of stigmatising those individuals whom it was aiming to help.
As Chairman of the Council of Christians and Jews he was also concerned about the unintended side effects of some of the Bill’s proposals on Jewish religious courts. One effect would be that under the Bill’s proposals a Jewish couple seeking guidance from a beth din about their rights and obligations relating to property or children on the break-up of a marriage would have to be turned away if those adjudicating it were not to break the law. In the case of Orthodox Jews who wished to follow Jewish law and bequeath their estate to their sons while conferring substantial dowries on their daughters, where a man died intestate his children would not be able to seek an adjudication from a beth din as to the disposition of the estate.
In conclusion, the Bill as drafted appeared to present
“… anomalies which could create problems for those who are well aware of their rights, are independently advised and want to approach their faith tribunals for adjudication in a matter which they believe to be covered by the rules of their faith”.
Lord Williamson of Horton pointed out that Clause 1(2) would close a possible loophole in the Equality Act 2010 by making it clear that sex discrimination law applied to arbitration tribunal proceedings, so that tribunals which operate legitimately under the Arbitration Act 1996 could not use discriminatory sharia rules such as a woman’s testimony being worth half that of a man.
Lord Kalms noted that, as a consequence of the Arbitration Act 1996, all sorts of individuals and authorities could offer legal arbitration, including batei din. However, not only were their rules complementary to UK law but they were wholly subservient to it. It was not possible, for instance, for a Jewish court to adjudicate an arbitration case in such a fashion that its judgment ran contrary to secular law. Sharia courts, in his view, were not so highly regulated. Moreover, the Muslim Arbitration Tribunal had admitted that most of its work fell outside the remit of the Arbitration Act and was instead concerned with family law. He saw a problem of competing legal frameworks and what he alleged to be the contravention of a fundamental of secular law: the equality of the sexes.
Answering the debate, Lord Gardiner of Kimble said that the Government had reservations about the proposals in the Bill, some of which had already been voiced by the Bishop of Manchester. It had been suggested that religious law principles applied by arbitration tribunals and religious councils might undermine the principle of equal rights under the law; however, religious principles could be applied in the secular courts only if both sides had freely agreed to be bound by them. Regardless of religious belief, every citizen was equal before the law.
The Government was also unenthusiastic about a bar on arbitration in family disputes because it was keen to promote non-court dispute resolution services for family and other disputes. This was typically through mediation; but couples had the option to use arbitration and to apply religious considerations. The Beth Din and the Muslim Arbitration Tribunal provided alternative dispute resolution in accordance with halacha or sharia principles because the Arbitration Act 1996 allowed parties to agree that the arbitrator could use any system of law or rules other than national laws. Both parties had to agree freely to arbitration and to the use of religious principles – and even where religious law had been employed, the resulting decisions were reviewable by the civil courts on a number of grounds, including whether or not the agreement had been freely concluded. The decisions of religious tribunals that were not governed by the provisions of the Arbitration Act, such as sharia councils and Roman Catholic marriage tribunals, were not binding in secular law.
Many of the issues raised by Lady Cox were addressed in existing legislation: for example, the Equality Act prohibited discrimination on grounds of sex and s 51 Criminal Justice and Public Order Act 1994 prohibited intimidation of witnesses. The common law already restricted what could be arbitrated and the Government had no plans to change that. As to the issue of consent, the courts were already under a duty to question any order that appeared unfair and could refuse to make the order.
In short, the Government regarded the provisions of the Bill as unnecessary.
Comment: To say that this is a difficult area is a major understatement. Against the need for perceived fairness there has to be balanced the right of parties under the Arbitration Act 1996 to agree on an arbitrator and to agree on which laws or rules should apply to the arbitration. And if, for example, two Orthodox Jews in disagreement prefer to have their dispute arbitrated under Jewish rather than English law, what wider public interest is there in preventing them from doing so?
The problem which underlies much of the debate is the extent to which, in matters such as divorce, consent to arbitration by a religious court is genuine on the part of both parties. There is also an underlying concern about the prevalence of nikah marriages that are not subsequently registered under secular law. But would Baroness Cox’s Bill make any practical difference to the incidence of non-civil marriage? There certainly remains a lingering doubt about the way sharia might be applied in matters of family law that is not easily dispelled; but I suspect that if a remedy is needed, that remedy is education rather than legislation.
The British Academy briefing referred to above is based on a much longer report by Professor Maleiha Malik: Minority legal orders in the UK: Minorities, pluralism and the law. The principal message of Professor Malik’s analysis is the sheer complexity of the issue; and my own suspicion is that, if enacted, the Bill would very probably create as many problems as it cured – if, indeed, it managed to cure any problems at all. However, the Bill is at the beginning of its proceedings in the first House (which means that if it is passed by the Lords it will have to go through the Commons before becoming law) and second readings in the Lords are in any case agreed to as a matter of formality. If the lack of enthusiasm of Lord Gardiner is any guide the Bill is going precisely nowhere.