The response of the Advocate General for Scotland, Lord Keen of Elie, was simply that the issue remained under review:

“My Lords, the review recommended creating an offence that would apply to celebrants of religious marriages that do not confer legal rights. We continue to explore across government the practicality of such an offence among other potential options and whether it would achieve the change of practice intended.”

However, his Lordship then went on to say that the Government “do not agree with the recommendations in the sharia review”. This could simply refer to the recommendations about the regulation of sharia councils which the Government had previously rejected. However, based on his earlier summary of the review, it would seem that this refers to the proposed criminal offence. This would be a change in approach.

His Lordship was then very critical of the Council of Europe, which had passed a Resolution expressing concern, inter alia, about the operation of sharia councils in the UK. Lord Keen said that:

“The Council of Europe’s view on this was, I regret to observe, inept in so far as it used the concept of ‘civilly registered’, which is not a legal concept in the context of the marriage laws of England and Wales.”

This is strong stuff. But as Frank Cranmer and I argued in a recent article, the Council of  Europe Resolution included a number of misunderstandings about the current legal position.

Lord Keen then went on to say:

“On 29 June, it was announced that the Law Commission would undertake work in relation to the law on how and where marriages may take place in England and Wales. The commission will not consider directly the sharia review’s recommendations, but it will consider rationalising the system of offences within marriage law.”

This is also interesting in that, previously, it was stated that the Commission’s work would be kept separate and that the Government would be responding to the concerns raised by the sharia review separately. Indeed, the Law Commission’s work will not meet the deadline given by the Council of Europe.

Lord Keen repeated his comment – that had been criticised by Baroness Cox – that ‘this is as much a social issue as it is a legal issue’. He explained:

“Many people in this country choose to cohabit rather than go through any form of marriage but, within the Muslim community, cohabitation is severely frowned upon. It is for that reason that we find that many go through this informal form of marriage, which is not recognised under our law.”

Those who have unregistered religious marriages are in the same legal position as those who cohabit. But, as I have argued in an article co-written with Sharon Thompson, the current legal position is unsatisfactory in relation to those in both positions. England and Wales desperately needs a cohabitation law – and that would mitigate the problem of unregistered religious marriages.

Lord Keen’s concluding words were non-contentious:

“There is a very real need for education and information in this area. If we can achieve that, we can take strides to deal with this inequality and injustice, which we readily recognise, but which is more difficult to cure than to identify.”

It would appear that this is a matter which is still being explored across Government. Perhaps the Ministry of Justice will focus on this once no-fault divorce reforms are realised. However, Lord Keen’s replies are of note in relation to his criticism of the sharia review and the Council of Europe Resolution as well as the suggestion that this might be a matter dealt with by the Law Commission’s work on Weddings.

Russell Sandberg

Cite this article as: Russell Sandberg, “The House of Lords on marriages and sharia law” in Law & Religion UK, 24 October 2019, https://www.lawandreligionuk.com/2019/10/24/the-house-of-lords-on-marriages-and-sharia-law/.