House of Commons debate on sharia courts: summary

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 [2003] ECHR 87 that sharia law was incompatible with the Convention [123] 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.

Cite this article as: Frank Cranmer, "House of Commons debate on sharia courts: summary" in Law & Religion UK, 3 May 2019, https://lawandreligionuk.com/2019/05/03/house-of-commons-debate-on-sharia-courts-summary/

10 thoughts on “House of Commons debate on sharia courts: summary

  1. Some people have been trying to create amtension and chaos about the introduction of Islamic personal rules in the UK. We can name it as Shari’ah court or Islamic court and yet, all what they do is dealing with some aspects of personal law: laws of marriage and divorces. It is good for this country in many ways. It could save a lot of money in legal aid claims and unnecessary delays in divorces cases. It is a viable method to reconcile the problem of marriage and divorce peacefully and internally among Muslim community rather than going through all legal procedures of English law. Which take a long time and a lot of money. We know well that English law on marriage and divorce is a complicated one and takes a long time to resolve. Some loopholes and legal stratagems are used to exploit the weak among couples in case of divorces and yet, Islamic marriage and divorce law are different from common law. So, there is no conflict if Muslim community is allowed to have their personal law in the UK.

  2. It’s not just Muslims who need to be made aware that their religious ‘marriages’ are not legally bining as far as UK law is concerned. How about all the cohabitants who believe they are in something called a common-law ‘marriage’?

    Considering the important consequences that flow from the breakdown of a non-marriage, how can we all be so ignorant about something so fundamental? And why should Government be called upon to run awareness-raising campaigns? We citizens have a duty to inform ourselves.

    • Tell me about it! Russell Sandberg, Sharon Thompson, Rebecca Probert, Anne Barlow and umpteen others (including me) have been banging on about this for years. Cohabitants just don’t get it – and the myth of ‘common law marriage’ just won’t go away.

      • Common law marriage is a real thing, not a myth. What you are referring to is an Act of Parliament in (I think) the 19th century, controversial at the time, seeking to abolish it, as a thing that the British state continued to recognise. That Act is something that many people just don’t care about.

        The British state didn’t invent marriage, does not own it, and cannot change what it is, namely the pair-bonding between the members of a natural breeding pair of a particular species of mammals – humans. With or without ceremony, that is, and with or without state recognition, whether or not tthe couple seek the imposition of the state’s various couple penalties.

      • You are correct, Frank. Frustrating isn’t the word. Where did this myth originate, I wonder. My wife relates that she was told by one of her grannies from a north-east Scotland fishing village that in her day (early 20th century) it was customary to put a notice in the Post Office window to announce that a certain couple were now married. This was instead of a civil ceremony. Presumably it gave evidence for a ‘marriage by cohabitation with habit and repute’. Although how useful such a notice would be 10/20/30 years later must be problematic.

        This is well after civil registration of marriages had been introduced in Scotland (1855). Unfortunately, we didn’t pursue this with her granny in terms of finding out how effective this was in the event of death of one of the partners in disbursing the estate or what happened if the couple split. Or when this practice eventually stopped.

    • Legal marriages aren’t legally binding. They are, however, an invitation to the state to interfere in the event of a divorce.

      The right word is “recognised”, rather than “binding”. It’s no use petitioning one’s significant other for divorce in the state’s courts in the hope of getting a meal ticket for life, if one hasn’t procured the state’s de jure recognition of one’s de facto marriage in the first place.

  3. Of

    a legal requirement for … couples to civilly register their [religious] marriage before or at the same time as their [religious] ceremony, as ”—the report claims—is already stipulated by law for Christian and Jewish marriages”;

    and

    enforcement measures to oblige the celebrant of any marriage … to ensure that the marriage is also civilly registered before or at the same time as celebrating the religious marriage;

    My understanding of the law at present is that there is no legal requirement to “civilly register” a religious marriage of any type, nor any legal duty capable of “enforcement” obliging the celebrant of any religious marriage to ensure anything at all. If I am mistaken about this, it is because I have been misinformed by those who ought to know, including clergy and registrars of state marriages.

    Given that the British state’s doctrine of what marriage is is nowadays irreconcilably different from the doctrines of Islam, Judaism and Christianity, I have argued that we need the separation of church and state in this area, which I’d been told we’d already got, more than ever before in living memory. I regard as sinister the unnoticed loss of, or new threat to the former unfettered religious freedom, to conduct religious ceremonies that create ecclesiastical marriages which are not recognised by the state or to refuse to recognise for ecclesiastical purposes certain state marriages that violate ecclesiastical doctrine.

    • The claim in the report that it is “a legal requirement for … couples to civilly register their [religious] marriage before or at the same time as their [religious] ceremony, as … already stipulated by law for Christian and Jewish marriages” is in any case just wrong.

      Church of England and Church in Wales marriages are effected by the couple being married in church and signing the register: the register entires are subequently communicated to the General Register Office, but there’s no separate act of civil registration. Likewise Quaker and Jewish marriages.

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