Sharia and the English legal system: the Government’s view

For an updated and more general view see Catherine Shelley’s guest post

Last Tuesday a brief debate on sharia took place in Westminster Hall (in effect, the parallel Chamber of the House of Commons, where debates are held but no votes), no doubt prompted at least in part by the previous night’s edition of Panorama on BBC 1, Secrets of Britain’s Sharia Councils. Kris Hopkins, the Conservative Member for Keighley, was concerned that his local council of mosques had issued a press release calling for the Government to recognise sharia councils and ensure that they were better resourced.

The debate

Hopkins had four questions for the Government:

  • first, he wanted confirmation that there was “only one law in this country”;
  • secondly, he sought confirmation that sharia councils had to comply with “UK law”, including compliance with all equality and anti-discrimination laws and family law;
  • thirdly, he wanted to know how the Government would ensure compliance with secular law and what penalties would be applied to a sharia council that broke the law; and
  • fourthly, he asked whether the Government had given any consideration to ensuring that all sharia marriages should be legally underpinned by compulsory civil marriage.

Secrets of Britain’s Sharia Councils had shown that women were not always being treated equally by sharia councils and that the councils were not handling issues such as costs and child custody (which latter was not properly a matter for them in any case) in an even-handed way. Moreover, he understood that the act of determining child access or contact could not, legally, be undertaken by a sharia council or court and he hoped that, if evidence of wrongdoing could be established, those who had broken the law would be pursued.

He noted that some men were choosing not to marry through the civil law process because not doing so made divorce simpler; and a woman who had not contracted a civil marriage could not easily claim her share of the assets at the time of a sharia divorce. Marrying under sharia also meant that the man could marry a second wife because the first, sharia marriage was not recognised in civil law. In short, he wanted to see all sharia marriages simultaneously registered as civil marriages in order to protect women.

In reply, the Parliamentary Under-Secretary of State for Justice, Helen Grant, said that there was some confusion over the issue. She stressed that

“… sharia law has no jurisdiction under the law of England and Wales and the courts do not recognise it. There is no parallel court system in this country, and we have no intention of changing the position in any part of England and Wales”.

Sharia was the code of personal religious law governing the conduct of Muslims. There were a number of sharia councils in England and Wales that helped Muslim communities to resolve civil and family disputes by making recommendations by which they hoped the parties would abide; but she said that she wanted to

“… make it absolutely clear that they are not part of the court system in this country and have no means of enforcing their decisions. If any of their decisions or recommendations are illegal or contrary to public policy – including equality policies such as the Equality Act 2010 – or national law, national law will prevail all the time, every time. That is no different from any other council or tribunal, whether or not based on sharia law”.

That said, however, the Government did not prevent individuals from seeking to regulate their lives through religious beliefs or cultural traditions; and provided that activities prescribed by sharia did not contravene the law of England and Wales, there was nothing to prevent people from living by it.

In addition, the use of religious councils or other extra-legal bodies to deal with civil disputes was well established and non-contentious – but such decisions were subject to national law and were not legally enforceable:

“Any member of any community should know that they have the right to refer to an English court at any point, especially in the event that they feel pressured or coerced to resolve an issue in a way with which they feel uncomfortable”.

Sharia councils did not have any legal means of enforcing their decisions: they could only make recommendations that they hoped the parties would follow and a challenge to a sharia decision in a civil court would be made in accordance with English law.

She reiterated the Government’s determination to tackle domestic violence; but the Government believed that the current legislation already made adequate provision to meet concerns about the perceived use and interpretation of sharia. Instead, what was needed was to raise awareness of the existing position under English law.

As to the criminal law, in England and Wales criminal proceedings were always heard in a criminal court. The Government did not recognise any criminal law decision made by any alternative court in England and Wales and had no intention of changing that position. As to the recognition of sharia marriages by English courts, the Government was working to raise awareness of the need to have a legally-recognised marriage and it was encouraging mosques to register in order to carry out legally-recognised marriages.

Comment

It should be said at the outset that if Helen Grant did not actually get the law wrong, it is, nevertheless, slightly more complicated than she suggested.

When she said that “… sharia law has no jurisdiction under the law of England and Wales and the courts do not recognise it” she was correct in the sense that in none of the three jurisdictions does the courts recognise as law rulings made by tribunals of voluntary organisations.[1] However, there is no reason in law why parties in a dispute should not agree under the terms of the Arbitration Act 1996 or the Arbitration (Scotland) Act 2010 to accept and be bound by the ruling of a sharia tribunal, just as parties sometimes agree to accept and be bound by the ruling of a beth din – and if they do so, the English courts will enforce that ruling. For recent examples see Kohn v Wagschal & Ors [2007] EWCA Civ 1022 and (though, admittedly, extremely specialised and fact-sensitive) Re AI and MT [2013] EWHC 100 (Fam). (I am not aware of any recent Scots precedent but I doubt the situation in Scotland is any different.) Equally, however, the courts will not enforce religious law where its provisions conflict with an order of a secular court: see, for example, Al-Saffar v Al-Saffar [2012] EWCA Civ (unreported) – but the Al-Saffars had married under civil law as well as under sharia.

The issue is not, presumably, the possibility that two people in dispute would enter a formal arbitration agreement under which they would agree to be bound by the ruling of a sharia tribunal in the same way as they sometimes agree to be bound by a ruling of the London Beth Din: the problem is religious adjudications that take place totally outside the civil law.

If a man and a woman contract a nikah marriage under Islamic law but do not also contract a civil marriage, it is difficult to see at what point their relationship engages the secular courts. There is no concept of “common-law marriage” in English law; and though irregular marriage existed in Scotland until very recently, marriage “by habit and repute” was finally abolished by s 3  of the Family Law (Scotland) Act 2006 (though not in respect of subsisting marriages).

So if a couple who contracted a nikah marriage but not a civil one obtain a religious divorce, absent any criminal behaviour such as domestic violence and always provided that proper and adequate arrangements are agreed for any children, it is difficult to see what concern that is of the domestic law. To take the extreme case, in the eyes of the secular law a childless couple in a nikah marriage are surely in no different position from a childless couple who live together without getting married. Any associated difficulties in the case of a break-up, such as dividing their assets, is a problem that they will have to sort out between themselves.

Moreover, there is always the possibility that a couple who have contracted a religious but not a civil marriage may find themselves in a (?quasi-) contractual relationship. In Uddin v Choudhury & Ors [2009] EWCA Civ 1205 the court was prepared to accept evidence of an arranged marriage under sharia for the purposes of civil proceedings. A nikah ceremony had taken place in Battersea Town Hall in August 2003 but the intended civil ceremony had never taken place because the marriage had not worked; and on the application of the bride the Islamic Sharia Council pronounced a sharia decree of divorce in December 2004. The subsequent dispute was, in short, over the return of the dowry to the bride’s family and whether various gifts made to her should be returned to the groom’s family. Mummery LJ concluded at para 11 that the agreement under sharia should stand:

“… it was a valid marriage under sharia law and… it was then validly dissolved by decree of the Islamic Sharia Council. This was not a matter of English law. There was no ceremony which was recognised by English law, but it was a valid ceremony so far as the parties were agreed and it was valid for the purposes of giving legal effect to the agreement which had been made about gifts and dowry”. [emphasis added].

And yet there remains a considerable degree of concern that there is a problem of what might be termed “equality of arms”. Our understanding of the position is that divorce may be instituted unilaterally by the husband, the most common means being ṭalāq. The wife, on the other hand, must petition for khula (literally “extraction”, or release from the marriage) and if the husband refuses her request may petition the sharia tribunal to overrule his refusal. Moreover, where there are problems, a wife with little English may have difficulty in engaging with the secular authorities such as social workers and solicitors.

In conclusion, it is clear that there is a problem – but it is equally clear that there is no quick-fix solution. When Helen Grant spoke of “raising awareness”, that might possibly have been as much as she could reasonably have suggested.

Unless, of course, we tear down the entire system and start again from scratch: Parliament could make it illegal for any religious body to conduct a wedding ceremony without a prior civil wedding – as in France. But that might possibly be regarded as a step too far (and, incidentally, marriage law in Scotland and Northern Ireland are devolved matters, so in order to have a UK-wide system the Westminster Government would have to gain the agreement of Edinburgh and Belfast).

***********************

For further background see our post on sharia law and attempts to amend the Arbitration Act 1996 and Professor Maleiha Malik’s extremely learned and perceptive report for the British Academy: Minority legal orders in the UK: Minorities, pluralism and the law


[1] It should be remembered that the Church of England and the Church of Scotland are not voluntary organisations and their courts are sui generis.

Cite this article as: Frank Cranmer, "Sharia and the English legal system: the Government’s view" in Law & Religion UK, 29 April 2013, https://lawandreligionuk.com/2013/04/29/sharia-and-the-english-legal-system-the-governments-view/

17 thoughts on “Sharia and the English legal system: the Government’s view

  1. Pingback: BBC Panorama: Secrets of Britain’s Sharia Councils « Multiculturalismo y pluralismo jurídico

  2. There can only be “one” law for all, whether it be in the UK, Canada, Australia or NZ for this is part of our common Christian Judaic heritage which have has come down and evolved over the past 2000 years.

    No society can afford to have a dual system with in the longer creating civil strife.

    Those coming to, and or remaining in a Christian country have to accept the law which exists and have no right to demand, or illegally enforce a foreign code on any subject of the Crown.

    • 100% correct! These are our birthrights and we should not allow any other religion or law in these countries. By all means allow them to practise it in their homeland but not theirs in mine.

    • There is no dual system and never will be and take a look around, this is not a christian country, it hasn’t been for years (not referring to any immigration issues) and by no means are the laws in accordance to a christian faith. It a British law system, nothing more

      • Nor can David or I see any likelihood of a dual system: it’s not the policy of the present Government and we can’t imagine any future Government taking a different view.

  3. Total agreement with the above. Whenever travelling or moving overseas you are expected, and quite rightly, to adhere to that country’s laws. Subsequently anyone coming to an English country must abide by its laws.

  4. I think the majority of logically thinking people would agree, that when you travel to or reside in any country you must abide by the laws of that country. to expect any country to apply your countries laws to your actions is totally unreasonable

  5. The Westminster Government (and the English legal system) does not recognise or enforce any purported “criminal law” decision made by any private tribunal in England and Wales and has no intention of changing that position. I should be astonished if the Scottish Government or the Northern Ireland Executive took any different view.

    Where the decisions of batei din and sharia tribunals begin to interact with the secular legal system is when parties in a dispute agree under the terms of the Arbitration Act 1996 or the Arbitration (Scotland) Act 2010 to submit their dispute to a religious court and to accept and be bound by its ruling. Parties can appoint absolutely anyone they like as an arbitrator – and if it happens to be a beth din, so be it. But what a religious court cannot do is to attempt to oust the jurisdiction of the secular courts.

    There was an interesting case recently, AI v MT [2013] EWHC 100 (Fam) in which the parties had agreed that they would consider the possibility of reaching an agreement using an alternative dispute resolution process being offered by the New York Beth Din. Baker J, before consenting to the parties’ use of the beth din, made it clear that the parties could not oust the jurisdiction of the court by their stated agreement that they would abide by the beth din‘s conclusion. The overriding objective in the Family Proceedings Rules 2010 provides for the use of alternative dispute resolution methods – on the basis that it is always in the interests of the parties to resolve matters through alternative dispute resolution as opposed to litigation if they possibly can. But what they could not do would be to go along to a beth din, negotiate a divorce and expect the Family Division simply to rubber-stamp it. Mutatis mutandis, similar considerations would no doubt apply to a divorce settlement agreed before a sharia tribunal.

    (For a more learned exposition than I’m capable of, see James Wilson’s post on UKHRB: Court opens way to divorces by Sharia? Hold on a minute…)

  6. Pingback: Law & Religion 2014 and 2015: retrospect and prospect – Part I | Law & Religion UK

  7. Pingback: BBC Panorama: Secrets of Britain’s Sharia Councils | Multiculturalismo y pluralismo jurídico

  8. If a wife is not convinced with Sharia Council decision on her seeking divorce or loses trust in Sharia Council or Sharia Council is delaying the matter too long under the pretext of ” saving the marriage” instead of ” saving her life” , then can she resort to a regular British Court of Law?

    Here, there was no Civil Marriage registered.

    • The short answer is, presumably, “it depends on the facts”.

      If the parties have concluded a nikah wedding solely, and not one which has been registered with the secular authorities, then presumably it is a non-marriage and therefore not the concern of the secular courts. In the case of a marriage which is so recognised, then presumably she can seek a civil divorce if she has adequate grounds on which to petition. Whether she has any other redress I do not know.

  9. I wish to remind people that the basis of English laws is based on Islamic law. Example, the common law. Use logic and basic reasoning – how do you think it came to be?

  10. Pingback: Blogging our way through 2013 | Law & Religion UK

  11. Pingback: Writing on the “graffiti wall of death” – the role of an academic blog | Law & Religion UK

  12. Pingback: Law & Religion 2016 and 2017: retrospect and prospect | Law & Religion UK

  13. Pingback: The state of the blog | Law & Religion UK

Leave a Reply

Your email address will not be published.