The Home Office has today published the report of the independent review chaired by Professor Mona Siddiqui into the application by sharia councils in England and Wales of sharia law. In brief, the report makes three recommendations: for legislative change, for awareness campaigns and for regulation.
1. Legislative change
The report proposes amendments to the Marriage Act 1949 and the Matrimonial Causes Act 1973 to ensure that civil marriages are conducted before or at the same time as Islamic marriage ceremonies, bringing Islamic marriage into line with Christian and Jewish marriage in the eyes of the law. The offences section of the Marriage Act 1949 would be amended to provide that the celebrant of any marriage, including Islamic marriages, would face penalties should he or she fail to ensure that the marriage was also civilly registered. It would become a legal requirement for Muslim couples to register their marriage under the civil law before or at the same time as their Islamic ceremony.
It also proposes minor amendments to legislation on divorce through changes to the Matrimonial Causes Act 1973. Section 10A would be amended to ensure equality between all religions. The review recommends a short insertion into the section to bring Islamic divorce in line with that of the Jewish get. The inclusion of a Muslim marriage by nikah could be inserted in s.10A(1)(a)(ii) through the use of a statutory instrument following the provisions of subsection 6. By linking Islamic marriage to civil marriage, a greater number of women would be given full protection in family law and the right to a civil divorce, lessening the need to attend sharia councils and simplifying the decision process.
2. Awareness campaigns
The panel believes that, on the evidence, cultural change is required within Muslim communities so that they acknowledge women’s rights in civil law, especially in areas of marriage and divorce. Awareness campaigns, educational programmes and other such measures should be put in place to educate and inform women of their rights and responsibilities, including the legal protection that civilly-registered marriages provide.
There is also a need to ensure that sharia councils operate within the law and comply with best practice, non-discriminatory processes and existing regulatory structures. In particular, the panel believes that a clear message must be sent that an arbitration that applies sharia law in respect of financial remedies and/or child arrangements would fall foul of the Arbitration Act and its underlying protection.
Finally, there is the need to raise public awareness in communities as to the availability of legal aid and the exceptions to the Legal Aid Sentencing and Punishment of Offenders (LASPO) Act (including the domestic violence and child protection exceptions) which mean that public funding is available to applicants.
The previous two recommendations aim gradually to reduce the use and need for sharia councils. However, a majority of the review panel sees the need, in the meantime, for a further recommendation on how to prevent discrimination in the immediate and medium term. The recommendation of regulation is not unanimously supported; one member of the panel is not in agreement; and the dissentient’s reasons are detailed in the report.
Recommendation 3 proposes the creation of a body that would set up the process for councils to regulate themselves by designing a code of practice for sharia councils to accept and implement. There would be a one-off cost to the Government of establishing that body but, subsequently, the system would be self-regulatory. The body would include both sharia council panel members and specialist family law expertise. The report notes that none of the sharia councils was opposed to some form of regulation and some positively welcomed it.
We hope to post a longer analysis of the report in due course.