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.
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.
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. 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  EWCA Civ 1022 and (though, admittedly, extremely specialised and fact-sensitive) Re AI and MT  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  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  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.
 It should be remembered that the Church of England and the Church of Scotland are not voluntary organisations and their courts are sui generis.