The Council of Europe and sharia: an unsatisfactory Resolution

In this guest post, Russell Sandberg discusses the latest Resolution on sharia by the Parliamentary Assembly of the Council of Europe.

On 22 January 2019, the Parliamentary Assembly of the Council of Europe agreed the text of Resolution 2253: Sharia, the Cairo Declaration and the European Convention on Human Rights. The Resolution reiterates the obligations found in Article 9 ECHR and the Assembly’s “support for the principle of the separation of State and religion” (para 3) – which, in itself, ignores the fact that several members of the Council of Europe have state Churches and is based more on notions of laïcité than on the observable facts in countries such as England, Denmark and Finland. Unfortunately, this confusion and simplification set the tone for what is to come.

The Resolution focuses on two issues. First, it states that “the various Islamic declarations on human rights adopted since the 1980s, while being more religious than legal, fail to reconcile Islam with universal human rights” (para 4). This leads the Assembly to express “great concern that three Council of Europe States – Albania, Azerbaijan and Turkey” have explicitly or implicitly endorsed such declarations. Second, the Assembly states that it is “greatly concerned about the fact that Sharia law including provisions which are in clear contradiction with the Convention – is applied, either officially or unofficially, in several Council of Europe member States, or parts thereof”. (para 5).

In relation to this second issue, the Assembly states that “Sharia rules on, for example, divorce and inheritance proceedings are clearly incompatible with the Convention” (para 6). The Resolution “regrets” that Sharia law is still being applied in Thrace (Eastern Greece), that “muftis continue to act in a judicial capacity without proper procedural safeguard” and that “in divorce and inheritance proceedings – two key areas which muftis have jurisdiction – women are at a distinct disadvantage”.

The Assembly is also “concerned about the ‘judicial’ activities of ‘Sharia Councils’ in the United Kingdom” (para 8). It continues:

“Although they are not considered part of the British legal system, Sharia councils attempt to provide a form of alternative dispute resolution, whereby members of the Muslim community, sometimes voluntarily, often under considerable social pressure, accept their religious jurisdiction mainly in marital and Islamic divorce issues, but also in matters relating to inheritance and Islamic commercial contracts. The Assembly is concerned that the rulings of the Sharia councils clearly discriminate against women in divorce and inheritance cases. The Assembly is aware that informal Islamic Courts may exist in other Council of Europe member States too.”

Hopefully, it goes without saying that discrimination and intimidation are clearly wrong and that a blind eye cannot be turned to them within the context of a religious group. However, like the bald assertions at the start of the Resolution, the language of paragraph 8 lacks precision. The scare quotes around the words “judicial” and “Sharia councils”, as well as the final sentence, suggest that the Assembly is not fully aware of the problem. It also presents it entirely as a Muslim issue, despite the fact that other religions have tribunals – let alone informal means of dispute resolution – both within the community and to decide status. This is well-established: see, for example, Kohn v Wagschal & Ors [2007] EWCA Civ 1022, in which the Court of Appeal refused to set aside an order for the enforcement of an award made by the London Beth Din under the terms of the Arbitration Act 1996. That said, the research to date suggests that the paragraph is correct to say that the jurisdiction is mostly in relation to marriage and divorce: religious tribunals mostly rule on religious and marital status and the most obvious example of that, in addition to Sharia councils, is the system of Roman Catholic marriage tribunals.

Surely the issue of concern is whether people are pressurised into the form of alternative dispute resolution provided by Sharia councils? The Resolution distinguishes between situations where Muslims submit voluntarily and, alternatively, where they submit under social pressure – but then drops this distinction. That, however, is the nub of the issue. Where the decision to use a religious authority for dispute resolution is genuinely voluntary on the part of both parties then this should be no more objectionable than any other form of alternative dispute resolution. Moreover, the courts should not enforce any adjudication where submission to the authority was not voluntarily – as is the case in relation to an arbitration under the Arbitration Act 1996. This raises the question of how to determine voluntariness and the level of voluntariness required. Most if not all forms of agreement are reached under some form of “social pressure”. It would be overly paternalistic and a denial of the free will of parties to say that all such agreements should be null and void. Determining whether the pressure is “considerable” will be tricky. Sandberg and Thompson have suggested that a relational contract approach that pays particular attention to vulnerable parties could provide a way forward and have suggested applying an approach that Thompson created in relation to prenuptial agreements: Feminist Relational Contract Theory.

The problem, however, arises where non-voluntary religious adjudications are not legally enforced but are religiously and socially enforced. It is arguable that this is where State authorities need to play a role and thought needs to be given as to how that can be achieved – especially in a way that does not stigmatise the Muslim community but also covers other situations of patriarchal or community pressure. However, this means getting involved in the religious affairs of these groups. The subject matter of some adjudications by religious tribunals will mean that they are unlikely to be legally enforced. Paragraph 8 states that the councils focus upon “marital and Islamic divorce issues”. Religious institutions are not concerned with the status of a marriage or of its termination under State law: they are concerned solely with religious marriages – whether or not someone is married in the eyes of the faith. For some adherents, marriage can have both a religious and a legal dimension. Religious institutions like Sharia councils are only concerned with the religious dimension. Adherents who have undergone a religious marriage that complied with the legal requirements may still feel married in the eyes of the faith after a civil divorce because they may feel that the civil divorce does not dissolve the religious marriage: again, Roman Catholic marriage tribunals provide the obvious parallel. However, the use of a religious institution like a Sharia council is unlikely to be problematic in this scenario since the legal aspects of relationship breakdown will already have been dealt with. The abolition of most legal aid for family law cases under LASPO provides a caveat to this; but for most of the time, the role of the Sharia tribunal will be unproblematic.

The problematic scenario is where the parties have gone through a religious marriage but have not complied with the legal requirements. This would give them little to no redress under civil law (unless children are concerned): see, for example, Akhter v Khan [2018] EWFC 54 (noted here). On relationship breakdown, their only port of call would be a religious authority such as a Sharia council. The academic and policy literature has highlighted these so-called “unregistered marriages” as the problem – and one that is specific to the Muslim community. Academic comment has often paid little attention to the reasons why unregistered marriages are taking place. The answer to this is not clear-cut. Having a religious marriage that does not comply with the law on marriage registration might be deliberate or accidental. This might be because the law is unduly complex or restrictive. It might also be because of a choice not to have a civil marriage on the part of one or both parties: observant Muslims often have a nikah just so that they can be together without being chaperoned. It might result from a lack of awareness that the religious marriage has not been registered – see, for example, MA v JA [2012] EWHC 2219 (Fam) – or that legal marriage is needed to accrue rights on separation and death (a possibility buttressed by recent research showing the general prevalence of the myth of common law marriage).

There are numerous ways in which this issue could be tackled. Education and awareness would be key. Some legislative reform might be necessary: Sandberg and Thompson have argued that changes arguably necessary in Family Law generally (namely the modernisation of marriage formalities and rights for cohabiting couples) would mitigate the “unregistered marriages” issue. However, doing what the Resolution does, condemning Sharia councils in general and broad terms for their “judicial” activities is unhelpful and not the answer. Denying religious groups any form of adjudication function would render them unable to operate. All social groups need rules and need to interpret and apply their rules. The Resolution names Sharia Councils in the United Kingdom because research and policy documents have highlighted their existence. But we only know the tip of the iceberg. We know what the most high profile and mainstream Sharia Councils want to tell us about themselves. We know next to nothing about how other institutions within religious and cultural bodies formally and informally adjudicate. That final sentence of paragraph 8. which states that “informal Islamic Courts may exist in other Council of Europe Member States too” is also true of the UK. It would be more accurate to say that “informal means of religious adjudication probably exist in all Council of Europe Member States”. It is difficult to shake off the impression that the Assembly is unable to identify the issue – let alone the solution – and so has opted for a simplistic and ultimately counter-productive reductionist tirade against Sharia.

There are various seemingly vague utterances in the Resolution which, though seemingly unobjectionable, are overly simplistic such as “the principle that where human rights are concerned, there is no room for religious or cultural exceptions” (para 9). It also “notes with approval the 2008 judgment of the United Kingdom’s House of Lords addressing these principles” (para 10) but omits to say which case it is referring to: we assume that this is a reference to Lord Scott of Foscote’s remarks, obiter, at paragraph [51] of Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints [2008] UKHL 56.

The lack of nuance and understanding comes to the fore, however, in paragraph 14 where the Assembly calls on the authorities of the United Kingdom to take various actions which, under paragraph 15, are “to be reported back to the Assembly by June 2020 on the actions they have taken as a follow-up to this resolution”. Paragraph 14 states:

“The Assembly, while welcoming the recommendations put forward in the conclusions of the Home Office Independent review into the application of Sharia law in England and Wales, as a major step towards a solution, calls on the authorities of the United Kingdom to:

14.1 ensure that Sharia councils operate within the law, especially as it relates to the prohibition of discrimination against women and respect all procedural rights;

14.2 review the Marriage Act to make it a legal requirement for Muslim couples to civilly register their marriage before or at the same time as their Islamic ceremony, as is already stipulated by law for Christian and Jewish marriages;

14.3 take appropriate enforcement measures to oblige the celebrant of any marriage, including Islamic marriages, to ensure that the marriage is also civilly registered before or at the same time as celebrating the religious marriage;

14.4. remove the barriers to Muslim women’s access to justice and step up measures to provide protection and assistance to those who are in a situation of vulnerability;

14.5. put in place awareness campaigns to promote knowledge of their rights amongst Muslim women, especially in the areas of marriage, divorce, custody of children and inheritance, and work with Muslim communities, women organisations and other non-governmental organisations to promote gender equality and women’s empowerment;

14.6 conduct further research on ‘judicial’ practice of Sharia councils and on the extent to which such councils are used voluntarily, particularly by women, many of whom would be subject to intense community pressure in this respect.”

The conclusions of the Home Office review have been analysed previously and we do not need to repeat its concerns here. However, as Sandberg has recently pointed out, the notion that this is a separate problem needing a solution is itself problematic in that it masks the interconnectedness of the issues and the need for comprehensive reform. Paragraph 14.1 is laudable but rather general. It also raises the issue of how the procedures of Sharia councils will be monitored or regulated without thereby giving them some kind of formal recognition. The fact that we do not know the number of such councils let alone the number or existence of less formal religious forms of adjudication make this recommendation difficult to fulfil in a meaningful way; moreover, in its Integrated Communities Strategy Green Paper, the UK Government has already dismissed the idea of any kind of formal recognition. Referring to the proposal for regulation made by The independent review into the application of sharia law in England and Wales chaired by Professor Mona Siddiqui, the Integrated Communities Strategy Green Paper stated categorically that though the Government “will explore the legal and practical challenges of limited reform relating to the law on marriage and religious weddings”, it considered that “the review’s proposal to create a state-facilitated or endorsed regulation scheme for sharia councils would confer upon them legitimacy as alternative forms of dispute resolution” and that such a scheme would be inappropriate (p 58).

Paragraph 14.2 misunderstands both the law and the issue. English and Welsh marriage law already requires civil registration in order for marriages to become lawful. Muslims are in the same position as all other religions. Yes: particular provisions apply to the Church of England, the Society of Friends and Jews but, in essence, the law is the same: for there to be a lawful marriage the Marriage Act 1949 needs to be complied with. The issue is not that the Act needs reviewing (or, at any rate, not on those particular grounds) but that some couples in the Muslim community are not using the Act. As noted above, this might be for a variety of reasons. A “legal requirement” could be added if it was decided to make religious marriages unlawful. At the moment, such marriages are not valid marriages under English law – but making such marriages unlawful would not increase the rights and protections of the parties within them.

The same is true of the requirement in 14.3. This would require the State to police religious acts of worship and to outlaw anything that looks like a religious marriage unless the Act is complied with. As Sandberg has argued, imposing criminal or indeed civil liability upon celebrants misses the point. There is no evidence that celebrants are advising that the Marriage Act does not need to be compiled with – but if there was, then this would surely be best dealt with by means other than legal sanction. And if celebrants are deliberately not following the Marriage Act, then there are already a number of existing provisions that deal with this: section 75 of the Marriage Act 1949 already provides a number of offences where marriages are solemnised but the Act is not complied with and section 76 provides offences relating to the registration of marriages. And in any case, there are questions about the activities that legislation on religious marriage could outlaw: what about, for example, Wiccan handfastings?

The recommendations in paragraphs 14.4 and 14.5 are unobjectionable. Education and awareness raising is clearly needed, especially with regard to gender. However, the fact that the Resolution itself is unclear shows a significant obstacle to this. Although “the religious marriage” is mentioned in paragraph 14.3, elsewhere the Resolution adopts a very State-centric view of marriage. Paragraph 14.2 sharply distinguishes “Islamic ceremonies” from “Christian and Jewish marriages”. This is why the call for more research in paragraph 14.6 is sound. Such research should be the foundation for the recommendations rather than an afterthought. There is a need for the research to do much more than focus “on ‘judicial’ practice of Sharia councils”: the focus needs to be on religious adjudication more broadly and also upon the legal framework pertaining to marriage and divorce.

The Parliamentary Assembly of the Council of Europe is right to be “concerned” (para 8). However, its articulation of the issue and its recommendations show that this concern is based upon moral panic about Sharia councils. This moral panic needs to be contextualised in several respects. We need to look more broadly at religious adjudication, how law can deal with adjudications that are enforced religiously and socially in contexts where legal enforcement has not been sought or is irrelevant, how the law can determine whether or not an agreement is voluntary or not, why unregistered marriages are taking place, whether there are similarities in cause and effect between the issues that unregistered marriages raise and more general concerns about whether Family Law reflects and facilitates the ways in which adult personal relationships are formed, exist and are publicly marked in the twenty-first century.

To conclude: the Assembly’s concerns, though not always well-articulated, are generally sound: its recommendations, however, are misguided, naive and are likely to hinder the laudable aims behind the Resolution.

Russell Sandberg

Cite this article as: Russell Sandberg, “The Council of Europe and sharia: an unsatisfactory Resolution” in Law & Religion UK, 29 January 2019, https://www.lawandreligionuk.com/2019/01/29/the-council-of-europe-and-sharia-an-unsatisfactory-resolution/.

2 thoughts on “The Council of Europe and sharia: an unsatisfactory Resolution

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