In this guest post, Amin Al-Astewani, PhD candidate, University of Manchester Law School, contemplates the fate of Baroness Cox’s Arbitration and Mediation Services (Equality) Bill…
Baroness Cox’s six-year campaign to address the plight of British Muslim women came to a grinding halt on 11 March. The date had marked a momentous occasion for Cox and her supporters. Her private Member’s bill had been scheduled to receive its first ever debate in the House of Commons, after failing to pass through the House of Lords four times in a row since it was first introduced in 2011. Due to a busy parliamentary timetable, however, it was not discussed. Since 11 March marked the last allotted sitting of the current parliamentary session for private Members’ bills to be discussed, Cox’s bill will most likely not reappear until the next parliamentary session (if she decides to reintroduce it once again). It is therefore an appropriate time to pose the following question: why has Baroness Cox’s bill failed systematically to become law?
The bill is comprehensive in its scope and outlook. It seeks to amend five different Acts of Parliament with sophisticated provisions dealing with a range of legal issues including gender discrimination, domestic abuse and unlawful duress. While the focus of the bill is clearly the regulation of services provided by sharia tribunals, it is not limited to this objective. The bill also contains provisions which address the plight of Muslim women more generally and which are unrelated to sharia tribunals. The duty placed on public authorities in Part 2, for example, clearly seeks to enhance the legal rights of Muslim women through education and awareness, while the provision on domestic abuse in Part 4 is a practical attempt to provide extra protection for Muslim women suffering from domestic abuse. This explains why the bill has received popular support from a markedly diverse array of social groups. Supporters of the bill include Christians, Muslims, Jews, secularists and feminists. The bill has also received strong support from the media.
The bill’s popular support make its systematic failure to pass through the parliamentary process appear at first particularly surprising. The reason for the failure is however rather straightforward and relates to the nature of private Members’ bills. Only a very small minority of private Members’ bills actually reach the statute book. This is because they are allocated a minimal amount of time in the parliamentary timetable. The only way that such bills can realistically succeed is for the Government to make additional time for them to complete their parliamentary stages. In practice, therefore, a private Member’s bill will not get through without the support, or at least the benevolent neutrality, of the Government. This is precisely the reason that Baroness Cox’s bill has failed five times consecutively to enter the statute book: it simply does not have Government support.
The Government’s reservations regarding the bill became apparent in 2012, when the bill managed to receive its first debate in the House of Lords. The bill unsurprisingly received warm support from the majority of the House. After listening to all the contributions, Lord Gardiner responded on behalf of the Government and praised the bill’s noble objectives of supporting the rights of women and ensuring all citizens enjoy the same rights. He noted, however, that the Government had reservations about whether the bill was “the best way forward” in tackling the issues concerning British Muslim women.
The Government’s first major objection about the bill was its prohibition of arbitration according to religious principles, something which, the Government stated, the Arbitration Act 1996 specifically sought to facilitate. This is indeed a major shortcoming of the bill. If two parties are both genuinely happy to have their dispute arbitrated according to religious principles despite the discriminatory nature of such principles, the bill would still prohibit such arbitration. Such a prohibition conflicts with a central premise of the Arbitration Act: namely, the freedom for two parties to have their dispute arbitrated according to any religious principles which they so wish.
The second major objection was that the issues which the bill sought to address were in fact already addressed by existing legislation. The Arbitration Act already stipulated that tribunals must act fairly and impartially and that arbitration awards can be challenged in court if such a duty is breached or if there is any other irregularity. The amendments made in Part 1 and 2 of the bill to the Equality Act 2010 and the Arbitration Act were therefore unnecessary. The proposed amendments to the Family Law Act in Part 3 were also unnecessary because contracts are already deemed unenforceable in English contract law if made under duress. Section 51 of the Criminal Justice and Public Order Act already made it an offence to intimidate victims of domestic violence, rendering the amendment suggested in Part 4 redundant. Finally, the new criminal offence suggested in part 5 was deemed unnecessary by the Government because “Sharia councils and other religious councils have no jurisdiction in this country, therefore any decision they make can never be legally binding.” For these reasons Lord Gardiner concluded that “increased awareness requires changes to society, not changes to the law.” When the bill did manage to receive another debate in 2015, the Government adamantly maintained its position, despite some changes that Baroness Cox had made to the text. Crucially, those changes included the removal of a clause that had stipulated that family law matters could not be subject to arbitration proceedings.
Baroness Cox’s bill may have strong public support; but the unfortunate reality of the parliamentary process is that it needs the backing of the Government. Unless she can persuade ministers that her bill positively compliments existing legislation, it is highly unlikely that she will succeed in making it law.
 The bill’s second reading has been rescheduled for 22 April; however, the House of Commons is not expected to sit on that date. Besides, even if the House did agree to sit on 22 April, Baroness Cox’s is one of over fifty bills which are scheduled to be discussed on that date, so it would have only a very slim chance of being discussed.
Cite this article as: Amin Al-Astewani, “Why has Baroness Cox’s Bill failed to become law?” in Law & Religion UK, 4 April 2016, https://www.lawandreligionuk.com/2016/04/04/why-has-baroness-coxs-bill-failed-to-become-law/.
My own view is that Baroness Cox’s bill is unlikely to become law because, however worthy the intention behind it, it is not a very good bill.
As you point out, in his reply to the second reading debate Lord Gardiner said that the issues that the bill seeks to address are already addressed by existing legislation. Whether the existing legislation is fully effective in ensuring that the parties before religious courts have, in fact, given genuine consent to the proceedings and that there is no element of coercion is an open question and a very difficult one. But if the existing law does need reform, surely the place to start is with a thorough investigation of its current state by the Law Commission, preferably in consultation with the Scottish and Northern Irish Commissions.
I think the comment “due to a busy parliamentary timetable, however, it was not discussed” is somewhat of a euphemism. Bs Cox’s Bill was one of the measures scheduled as “Business without debate” for consideration after Caroline Lucas’ National Health Service Bill, which sought to reverse private sector involvement in the NHS. However, as a result of a Tory backbench filibuster on the preceding Foreign National Offenders (Exclusion from the UK) Bill, subsequent business was “talked out”.
Thanks for the clarification David-I agree. I adopted the assessment from the bill’s official website (http://equalandfree.org/), which explains the benevolent interpretation of proceedings.
I’ve been there as well, quoting a chancellor’s opinion expressed in a judgment and being accused of being critical.