On 5 November the new Lord Chief Justice, Lord Thomas of Cwmgiedd, gave a press conference of which the transcript is now available. Two specific answers may be of interest to regular readers.
In reply to Frances Gibb of The Times, who asked whether he agreed with Sir James Munby’s recent comments (on which we have posted previously) that it was no longer the job of judges to impose morality in the courts and that Christianity no longer had any kind of precedence over other faiths, Lord Thomas said this:
“We are a court where we have to apply the law and the law is essentially a secular law and so, yes, I do agree, as it is our duty to apply law which is secular law: we should do that. I think that in the past, where judges have taken views in relation to what is not law, they sometimes get themselves into difficulties”.
Grania Langdon-Down, a freelance journalist, asked Lord Thomas about his views on sharia. In reply, he said that he was one of the few judges who had actually applied sharia in court:
“…but that was in a case to do with a partnership dispute, and so I had to learn a great deal about how sharia law worked, and I was not surprised, for example, that they had the concept of the lion’s share, because our systems do develop from very similar standpoints.
So, yes, you have contracts that are governed by sharia law or relationships that are governed by sharia law; and where they are, by our rules the proper law of the relationship – whether it be contractual or personal – then we apply it. There may be provisions of sharia law that would be repugnant to our public policy; but in general terms the system of sharia law as it is developing contains many principles that would operate in ordinary contracts – which is the area with which I am most familiar”.
The issue of sharia in relation to contracts has recently become fairly controversial as a result of the Prime Minister’s announcement that the Government wants the UK to become the first sovereign state outside the Islamic world to issue an Islamic bond and that the Treasury is working on the practicalities of issuing a bond-like sukuk worth around £200 million. Mr Cameron also announced that the London Stock Exchange is creating new indices that will identify companies that meet traditional Islamic investment principles.
Dr Michael Nazir-Ali, the former Bishop of Rochester, suggested darkly that Mr Cameron’s proposal might trigger a series of “unforeseen consequences” and took the opportunity at the same time to voice his fear, in response to Sir James Munby, that Christianity was being increasingly excluded from the administration of law. The Daily Telegraph reported him as saying that any public debate on the introduction of sharia-compliant bonds should include the question of whether or not sharia judges should be allowed to adjudicate in disputes over government-backed investments:
“They [presumably the Government] must be taking advice already from sharia scholars to put together these products. Has there been any discussion that such advice can be taken and that such adjudication can be acceptable in terms of official policy?”
– a question to which the authors of this blog do not know the definitive answer. However, if the Lord Chief Justice’s experience is anything to go by, the suspicion must be that if a dispute arose about the status in sharia law of a UK-issued sukuk it would be for the domestic courts rather than a sharia tribunal to resolve it and the court would then have to apply sharia as a species of foreign law.
In his Noel Coulson Memorial Lecture at SOAS in 1995 HHJ David Pearl explained the position of foreign law in the English courts like this:
“The method adopted in the UK for courts to be apprised of such information [about foreign law], which must be proved as a matter of fact like any other matter of fact, is for affidavits to be sworn and evidence given on oath, and subject of course to cross-examination, by those who profess a knowledge of the particular foreign law. If there is a conflict of evidence presented by the expert witnesses from either side, the judge must weigh the evidence and reach his own conclusions of what is the position of the foreign law”.
If the courts have to do that for French law or German law (or, for that matter, for Jewish law: see for example Kohn v Wagschal & Ors  EWCA Civ 1022, especially at para 18), why not for sharia?