In a speech this morning to the Foundation for Peace, Home Secretary Theresa May announced that the Government (assuming it wins the forthcoming General Election) will commission a study of the impact of sharia law in England and Wales.
Explaining the work of the Government’s new Extremism Analysis Unit she said this:
“There are some areas where – like in the application of shari’a law – we know enough to know we have a problem, but we do not yet know the full extent of the problem. For example, there is evidence of women being ‘divorced’ under shari’a law and left in penury, wives who are forced to return to abusive relationships because shari’a councils say a husband has a right to ‘chastise’, and shari’a councils giving the testimony of a woman only half the weight of the testimony of a man. We will therefore commission an independent figure to complete an investigation into the application of shari’a law in England and Wales.”
One can see the problem; however, as various commentators immediately pointed out, sharia councils are not the only religious tribunals around. Batei din and Roman Catholic marriage tribunals come immediately to mind – and for all I know there may be others. (The courts of the Church of England are sui generis and, in any case, already subject to the supervisory jurisdiction of the High Court.)
If there is indeed a particular problem with sharia councils then it obviously needs to be addressed: but to do so will require very careful policy formulation and drafting so as to avoid either religious discrimination against Muslims, contrary to Article 9 ECHR, on the one hand or having to regulate the religious tribunals of other faith communities on the other. Not easy at all.
Re the Roman Catholic marriage tribunals; the key difference is that the RC tribunals rule entirely on the matter of the religious aspects of a marriage (whether it can be declared null or not in the eyes of the church, which impacts remarriage in the church etc.). And the tribunals very openly state that their rulings have no civil implications under UK law: a legal divorce would still have to be sought to end the marriage and legal process followed re custody, assets etc.
The problem is not with the RC tribunals or others like them, but with religious courts/tribunals that seek to bypass the UK legal system, and make rulings on matters that are under the remit of UK law, and in ways that are at odds with UK law.
As May states, the issue is when sharia comes into conflict with UK law because it rules in ways that are contrary to UK law, such as giving a woman’s testimony less weight than a man’s or permitting a man to beat his wife.
The problem isn’t that there are religious tribunals in operation, but how they operate.
Indeed so: but RC marriage tribunals supervise the religious aspects of RC marriage law and sharia tribunals supervise the religious aspects of Islamic marriage law. I’m not saying that the two systems are comparable in their effects – of course they’re not. But what I am saying is that if the secular law were to attempt in some way to regulate sharia tribunals it would be difficult to do so in a way that would not also mean regulating religious tribunals generally. The alternative would be to run the risk of being discriminatory as between faith communities – contrary to Article 9 ECHR.
From time to time over the past several years, ‘Private Eye’ has drawn attention to guidance from the Law Society encouraging their members (i.e. all solicitors in England) to resolve issues of Islamic inheritance by reference to Islamic custom; examples cited by Private Eye are at times seeking to be very close to Sharia law, while others appear to have no basis in Islamic or any recognised code. In every case they operate against the interests of women whose public rights are well-nigh non-existent. No doubt the Law Society has immensely crafty and clever arguments based on subtle and seductive reasoning, for their policy but to an observer from the sidelines, it stinks. they need to stop it.
But surely the root of the problem is this: like it or not, it’s a basic principle of the law of succession in England and Wales (though not, it should be said, in Scotland) that, within the limits set out in the Inheritance (Provision for Family and Dependants) Act 1975, one may leave one’s estate as one wishes.
Maybe it’s time the law in E & W was assimilated to the law of Scotland (as in some other areas – marriage, for a start – which I’ve banged on about in earlier posts). But until that happens, surely the duty of a solicitor is to act in the interests of his or her client and to accommodate that client’s wishes insofar as that can be done under the law in force at the material time.
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