The recently-published Religion and Legal Pluralism, edited by Russell Sandberg, explores how religious laws are already accommodated under English law, particular issues that arise and their theoretical analyses that explore the extent to which religious legal systems should be recognised. In this post Russell explores the call for legal reform and two possible approaches.
The last few years have seen much concern expressed about the functioning of religious courts – or, to be more precise, we have seen a fear of sharia. The hyperbolic reaction to the erudite lecture on “Religious and Civil Law in England” in February 2008 by the then Archbishop of Canterbury, Dr Rowan Williams, highlighted not only how controversial the subject was but also the extent of our ignorance.
Concerns about religious courts have arisen in many Western States and with increased frequency. The most recent example was in March 2015, when the Home Secretary Theresa May spoke of “examples of sharia law being used to discriminate against women” but then went on to concede that “we know we have a problem, but we do not yet know the full extent of the problem”, calling for an independent investigator to be appointed – which is yet to occur.
Baroness Cox’s Arbitration and Mediation Services (Equality) Bill
Baroness Cox has been one of the most persistent campaigners for reform. She first introduced her Arbitration and Mediation Services (Equality) Bill into the House of Lords in June 2011. And four years on, a slightly amended Bill has been tabled again for a first reading.
Many of the problems with the 2011 Bill are still there in the 2015 version. The Bill still seeks to deal with sex equality and other matters in relation to arbitration and mediation services. This is, of course, laudable; but the Bill if enacted would actually have little effect upon religious courts.
A significant academic literature, including research conducted by Cardiff University into three particular religious tribunals, has underscored that most religious tribunals do not operate under the Arbitration Act 1996 and do not provide mediation services as such. This is particularly true in relation to how religious tribunals deal with questions concerning marriage and divorce. There are some religious tribunals who do operate under the 1996 Act for certain purposes but these are the exceptions to the rule.
Therefore, although there are a number of praiseworthy aspects to Cox’s Bill, like its predecessors the 2015 version mostly continues to miss the point. For instance, it still proposes the creation of a criminal offence of where someone “falsely purports to exercise any of the powers or duties of a court or, in the case of a purported arbitration, to make legally binding rulings without any basis whatsoever under the Arbitration Act 1996 (by which that person purports to have jurisdiction to make such rulings)”.
This proposed offence appears to be too broad. On its face it would appear to criminalise any disciplinary or judgment-making body. None of the religious bodies studied as part of the Cardiff research falsely purported (or indeed purported at all) to have an authority equivalent to that exercised by the courts of the State – they are voluntary associations which exercise no coercive power.
There are some good features to the Cox Bill as it currently stands, most notably the proposed extension of the public sector equality duty to include “informing individuals of the need to obtain an officially recognised marriage in order to have legal protection”.
The Cardiff research found that there may be a problem where religious marriages are not registered and so the parties are not married in the eyes of State law and therefore have little redress under State law if difficulties arise in the relationship. The Sharia Council we studied dealt with a significant number (over half in the 27 cases that we observed) of litigants who do not have a marriage recognised under English law. But, of course, that does not tell us anything about the numbers of recognised or non-recognised marriages that are never dealt with by the Sharia Council. We don’t know how much of a problem that this is and why such marriages are not being registered. The answer, therefore, may lie in education or the reform of marriage law rather than the extension of the public sector equality duty.
Overall, the Cox Bill still fails to understand the mischief that it seeks to remedy. The perceived problem that the Bill seeks to solve is what is often called the “minorities within minorities” issue. This is the need to protect the rights of minorities within religious and cultural groups, seeking to ensure, for example, that women are not discriminated against on grounds of sex by religious tribunals.
This is a genuine concern and attempts to combat this perceived problem are praiseworthy. I say “perceived” problem since we do not have any real empirical data on how common such discrimination is and to what extent it is a problem that affects religious tribunals in particular. Concerns about the protection of vulnerable individuals in institutions that are dominated by those with whom they have little in common in terms of gender and class could apply to courts in general.
The problem with Baroness Cox’s Bill, however, is that the focus is misplaced on arbitration agreements and on courts “falsely” asserting jurisdiction. The focus should actually be upon those who use the religious tribunals. The “minorities within minorities” issue can only be resolved by protecting those who are vulnerable and trying to ensure that if they decide to use a religious tribunal then it is a free choice and that they are not coerced into it simply by being a member of a religious group.
The answer, therefore, lies in education rather than legislation. However, if legislation is needed it would need to take a different form from that proposed in the Cox Bill.
An alternative approach
An alternative draft Bill entitled the Non-Statutory Courts and Tribunals (Consent to Jurisdiction) Bill is included as an appendix to Religion and Legal Pluralism. This Bill, drafted by Frank Cranmer and myself, is based on the proposition that what matters is whether the use of religious tribunals is consensual or not. The Bill follows the sophisticated understanding of consent that has already been developed in the Sexual Offences Act 2003, which provides a statutory definition of consent buttressed by the use of conclusive and rebuttable presumptions. Our Bill stipulates that the activities of a religious tribunal are only lawful where all parties consent but that decisions of a criminal nature and relating to disputes about children would always be unlawful regardless of whether or not the parties consent.
It therefore proposes a statutory offence of exercising or attempting to exercise a judicial or quasi-judicial function in respect of a person without that person’s consent. This is narrower than the Cox Bill, which proposes an offence of falsely claiming jurisdiction; and it focuses not on the assertion of the decision-making body but rather on the consent of the parties. We reserve the broader offence of falsely claiming a jurisdiction to a situation where someone has been charged with a criminal offence or where an order has been made concerning a dispute about children.
Our Draft Bill also tries to overcome the problems associated with the Cox Bill to cover tribunals that do not operate under the Arbitration Act 1996. Indeed, we exclude those that operate under the Act from the Bill’s remit on the basis that the Arbitration Act already contains robust protection. We hope that the draft will provoke further discussion of a complex issue. The recent comments by the Home Secretary suggest that there is still much to learn and it is hoped that Religion and Legal Pluralism will provide a further step in that direction.
Readers of Law and Religion UK can purchase the hard copy of the book directly from the Ashgate website at a 50% discount by using the code 50CNZ15N.
Cite this article as: Russell Sandberg, “Reforming Religious Courts: A Comparison of Two Bills” in Law & Religion UK, 12 July 2015, https://www.lawandreligionuk.com/2015/07/12/reforming-religious-courts-a-comparison-of-two-bills/
Dr Russell Sandberg is a Senior Lecturer in Law at Cardiff University where he researches at the Centre for Law and Religion. He is the author of Law and Religion (Cambridge UP 2011) and Religion, Law and Society (Cambridge UP 2014), and co-author of Religion and Law in the United Kingdom (2nd edn, Kluwer Law International 2014).
One wonders how making unlawful any decision by a religious court involving children – even if the parents consent (per the standard of consent in the SOA 2003) – would relate to the current attitude that parents should attempt to settle matters relating to where children should live etc without reference to a court of law (the No Order presumption).
Currently, before applying for a Child Arrangements Order, parents have to have gone through mediation (absent complicating circumstances like domestic violence). So we would have a situation where parents are competent to decide matters relating to children between each other without reference to a court of law (and are not only encouraged but required to attempt to do so), but are not allowed to ask their religious court to make a non-legally-binding decision for them if they can’t agree.
It seems a little strange to legislate that parents would be allowed to sort out where their children live, or any other matters, by drawing lots, throwing dice, astrology, arm-wrestling or any other bizarre method they can come up with… except reference to a religious body that they both respect.
I agree about the criminal matters, though.
Or have I got it completely upside down?
No, I don’t think you have got it upside-down; and Russell observed in an e-mail exchange just before I posted this that the trend in the de-juridification of family disputes seemed to support the use of religious and other tribunals. But what worries us is a different mischief: whether or not consent to the jurisdiction of religious courts is always genuine – in short, “jurisdiction creep”. If, indeed, both parties do respect a particular religious tribunal then fair enough; if, however, one party gets dragged along by the other by threats of eternal damnation, excommunication, “disfellowshipping”, family pressure or whatever, then it’s difficult to see in those circumstances how the consent is in fact genuine. And since one can never know the answer to that definitively, we reckon that in cases involving children it is better not to go there.
In the only recent case in point that I am aware of – AI v MT  EWHC 100 (Fam) – the parties to a failed marriage agreed to explore the possibility of entering into a process of alternative dispute resolution before the New York Beth Din. They submitted a consent order reciting that they were agreeing “to enter into binding arbitration before Rabbi Geldzehler” and undertaking to “seek and abide by any determination of the family issues through binding arbitration before the New York Beth Din”. Baker J indicated that he considered the terms of the consent order to be unlawful on the basis that they could not by agreement oust the jurisdiction of the court to determine issues arising out of the marriage or the welfare and upbringing of the children. He sought and received assurances from the New York Beth Din about the principles which would be applied in determining the arbitration, confirming inter alia that the best interests of the children would be the primary consideration.
In light of that, he endorsed the parties’ proposal for arbitration – but on the basis that the outcome would not be binding and would not preclude either party from pursuing applications to the court in respect of any of the matters in issue. And during a two-year arbitration process Baker J held a number of review hearings to monitor progress.
When he finally made the orders confirming the outcome of the arbitration he observed that the court gives appropriate respect to the cultural practice and religious beliefs of litigants before it but that does not oblige it to depart from the welfare principle. Further, though it was in the interests of parties to resolve disputes by agreement wherever possible, the court had be careful to avoid endorsing any process which had or might have the effect of ousting its own jurisdiction particularly (but not exclusively) in respect of the welfare of children.
Sorry that this is so long and tortuous: but it illustrates (I hope) that even where it seems conclusively the case that both parties consent freely to a religious arbitration, in a matter involving children the Family Court treads very carefully indeed.
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