On 2 May, a Commons debate was held in Westminster Hall on sharia courts in the United Kingdom. Opening it, John Howell (Henley) (Con) noted that the Council of Europe had called on the United Kingdom:
- to “ensure that sharia councils operate within the law, especially as it relates to the prohibition of discrimination against women, and respect all procedural rights”;
- to review the Marriage Act 1949 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 ”—the report claims—is already stipulated by law for Christian and Jewish marriages”;
- to 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;
- to ensure that vulnerable women are provided with safeguards against exploitation and informed about their right to seek redress before the UK courts;
- to mount awareness-raising campaigns to encourage Muslim communities to acknowledge and respect women’s rights in civil law, especially in marriage, divorce, custody and inheritance; and
- to “conduct further research on the ‘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.”
John Howell quoted Russell Sandberg’s observations – on this blog – that “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” and that “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”— provided that it also conforms with UK law.
Howell suggested that the ECtHR’s ruling in Refah Partisi (The Welfare Party) v Turkey  ECHR 87 that sharia law was incompatible with the Convention  did not mean that there was an absolute incompatibility between the ECHR and Islam. The Court had also recognised that religion was “one of the most vital elements that go to make up the identity of believers and their conception of life”; and the Court’s relatively firm position should not be taken as a rejection of all elements of sharia or of Islam as a whole, “while taking into account the existence of structural incompatibilities between Islam and the convention which, as far as sharia law is concerned, are sometimes absolute and sometimes relative”. He further noted that there was no single accepted definition of the term “sharia council” in the UK, that little was known about their work, and that there was uncertainty about their numbers.
As to the proposal by the review under the chairmanship of Professor Mona Siddiqi that the Government should regulate sharia courts, he agreed with the Government’s refusal to do so on the grounds that regulation would have the effect of legitimising them. Equally, a ban could not be imposed on voluntary organisations “that operate only on the basis of the credibility given to them by a certain community”:
“The evidence that the review heard indicates that women use sharia councils almost solely to obtain religious divorces, for a number of different reasons, such as community acceptance of the divorce and their own remarriage hopes. It is clear from all the evidence that sharia councils are fulfilling a need in some Muslim communities. There is a demand for religious divorce that is being answered by the sharia councils. That demand will not simply end if they are banned and closed down; instead, that could lead to them simply going underground, which would make it even harder to ensure good practice and would make discriminatory practices and greater financial costs more likely and harder to detect.”
His conclusion was that there should be clear acceptance of the law of the land, “as there is within other communities, particularly the Jewish community, whose members accept that British law overrides their religious law”.
Replying, Edward Argar (Parliamentary Under-Secretary of State for Justice) reiterated the Government’s position on sharia law:
“there is one rule of law in the United Kingdom. In practice, that means, within each of the UK jurisdictions, a single system of law, legislated according to our constitutional arrangements by this Parliament or the devolved Administrations. Our judicial systems interpret, apply and, where necessary, enforce those laws. There is no parallel system of sharia law in operation in the UK; Her Majesty’s courts enforce our laws … sharia law is not part of the British legal system…
Our vision for our communities is that all British citizens, whatever their religious background, should be free to practise individual religious freedom. Many British people of different faiths and none benefit a great deal from the guidance that religious codes and other practices offer. Those values allow us to enjoy our individual freedoms and to lead varied lives in diverse communities … however, it has to be within a framework in which citizens share and respect common rights and responsibilities, with unfettered access to national law and our legal institutions to enforce those rights when necessary. Equal access to the law is a key benefit of living in a democratic society…
If there is any conflict between religious practices and national law, national law must, and will, always prevail. In particular, I highlight the Equalities Act 2010 and … our strong and important human rights legislation and the framework behind it. The Home Office and the Ministry of Housing, Communities and Local Government lead on the broader issues surrounding faith, community integration and British values. The Ministry of Justice is responsible for the operation of the justice system, including the use of non-court dispute resolution services such as mediation, and for the law governing marriage … As my noble and learned Friend Lord Keen of Elie has said, people may choose to abide by the interpretation and application of sharia principles if they wish to do so, provided their actions do not conflict with national law; however, that must be their free choice, and does not supersede national law.”
As to the Council of Europe’s Resolution, the Government was clear that all rules, practices and bodies, including systems of alternative dispute resolution, had to operate within the rule of law:
“Our law provides for a formal system of legally binding arbitration under the Arbitration Act 1996, which allows parties to consent to apply a system of law other than English law, with appropriate procedural safeguards to protect against duress or coercion. Arbitral decisions can play an important role, but only if the necessary procedural requirements and legal safeguards are satisfied. Most types of family dispute can be resolved in a legally binding way only if they are adjudicated by the courts.”
As to the proposals of the recent review chaired by Professor Mona Siddiqi, the Government would continue to engage with faith groups, academics and lawyers to test their views on the policy and the legal challenges of limited reform relating to the law on marriage and religious ceremonies:
“I am keen for us to make as rapid progress as possible, but as the tenor of this debate has shown, …. this is a sensitive area that involves the expression of religious freedom, so it is important that we get any changes right.”
On the review’s recommendation for programmes to raise awareness among Muslim couples that Islamic marriages do not give the same legal protection as civil marriages, the cross-Government integrated communities action plan led by MHCLG commits to supporting awareness campaigns to educate and inform couples and their children of the benefits of having a civil marriage alongside a religious marriage. However, the Government continued to resist the review’s recommendation to regulate sharia councils by creating a state-established body with a code of practice for the councils to adopt and implement:
“The Government consider that a state-facilitated or endorsed regulation scheme for such councils could confer on them a degree of legitimacy as alternative forms of dispute resolution and risk introducing what might be perceived as a parallel system of law.”
As to the Council of Europe’s call for the UK authorities to do more to “remove the barriers to Muslim women’s access to justice” and the issue of possible coercion, the Government was clear that “we must do more to support people in faith communities to make informed choices about how to live their lives” and its work on integration, shared understanding of British values and the system of law that underpinned them was key to that.
He concluded by reiterating that, while many British people of different faiths benefited from their religious beliefs and practices, “There is, and remains, one rule of law in the United Kingdom, democratically enacted by this Parliament and the devolved Administrations, and applied by our independent judicial system.”
There is also a helpful Commons Library briefing paper produced in advance of the debate: General debate on Sharia law courts in the UK.