Should we be worried that a parallel legal system is creeping into existence in the UK when one law for all should be the defining principle of a liberal democracy? asks Rahila Gupta
Are Sharia councils proliferating in Britain? Are they different from the Muslim Arbitration Tribunals? How does the ‘one law for all’ ideal account for the Jewish religious courts, the Beth Din, that were set up more than 100 years ago by a UK statute, or the little discussed existence of Catholic Tribunals?
Theoretically, the judgments of sharia councils, an informal system of dispensing justice, often connected to or based in mosques, are not legally binding in the UK . Theoretically, their intervention is sought by families on a voluntary basis. Theoretically, no decision made by the councils or MATS (more on that below) in the area of family law should be in contravention of UK law. In that theoretical world, in the name of religious freedoms and the right of citizens to seek alternative forms of dispute resolution, the State has little room for manoeuvre. Furthermore, Dr Samia Bano, finds in a recent survey that sharia councils, ‘sought to avoid conflict with the state and did not appear to have any desire to replace civil law mechanisms. Fears that councils are forming a parallel legal system appear to be unfounded.’
So why does this fail to reassure? Because in reality the gap between theory and practice is treacherous. The longstanding critique of multi-culturalism and, since Blair and New Labour, multi-faithism, by feminist organisations like Southall Black Sisters (SBS), where undue power was vested in the hands of religious and community leaders by the state, is seen at its sharpest in the work of religious courts. The idea of it being ‘voluntary’ is laughable as many women are not aware of their rights and feel pressurised to go to the sharia council, which functions as an extension of the pressure to reconcile exerted by the extended family and community elders even when the relationship has been violent. SBS has found that sharia councils are widely used by the State, for example, through the work of social services departments as 'experts' which gives them an indirect influence on individual legal cases. Dr Bano reports that social workers often attended Sharia Councils to see ‘how Islam works’ so as to accommodate demands for the recognition of ‘diversity’ before making decisions about fathers' access to their children. Even where women had secured protection orders through the civil law to prevent their husbands having access to their children, their husbands used the promise of unilateral divorce (talaq) to regain access to their children.
While most women who come to SBS do not want religious courts to interfere in their lives, they also fear the stigma of not getting a religious divorce and being unable to remarry in a mosque. Often a civil divorce is not available to the women because, unknown to them, they did not have a valid marriage in the first place. From 2000, there has been an increase in women complaining about their inability to get religious divorces even when they have been deserted by their husbands or have left a violent relationship. The issue of stigma also haunts Jewish women in the Beth Din where the power to grant a divorce lies with the man. A woman who is refused a religious divorce, a get, turns into the ‘chained woman’ and her children from a remarriage will inherit the stigma and be unable to marry other members of Orthodox Jewish communities.
Muslim Arbitration Tribunals are a more recent development, the first one was set up in Britain in 2007, and classified under the Arbitration Act 1996 , which makes their rulings binding in law, provided that both parties in the dispute agree to give it the power to rule on their case. While the Arbitration Act does not explicitly exclude family matters from the jurisdiction of tribunals, their remit is meant to cover commercial and inheritance issues, a point reiterated by Jack Straw as Minister of Justice in 2008. However, the MAT website openly lists its areas of work as forced marriages, domestic violence, family disputes, Forced Marriage (Civil Protection) Act 2007, alongside commercial and mosque disputes.
Whilst criminal matters fall expressly outside their jurisdiction, where they intersect with domestic violence, this is what the MAT website alarmingly has to say on the subject. “MAT is unable to deal with criminal offences as we do not have jurisdiction to try such matters in the UK. However where there are criminal charges such as assault within the context of domestic violence, the parties will be able ask MAT to assist in reaching reconciliation which is observed and approved by MAT as an independent organisation. The terms of such a reconciliation can then be passed by MAT on to the Crown Prosecution Service (CPS) though the local Police Domestic Violence Liaison Officers with a view to reconsidering the criminal charges.” The powers that they are arrogating to themselves are dangerous and in breach of the good practice developed by women’s organisations when dealing with domestic violence. Reconciliation, where violence has occurred, is putting a woman in a life-threatening situation; encouraging the police to drop charges can have devastating consequences if the woman has an insecure immigration status and needs to provide evidence of violence in order to secure the right to remain here. The incompatibility of personal religious laws with secular civil law is not lost on the Tribunals. Their dearly held aspiration is declared, without irony, ‘What a great achievement it will be if we can produce a result to the satisfaction of both English and Islamic law!’
The drastic cutbacks in legal aid in the UK make
these religious courts a cheaper and much more attractive proposition for
minority communities, and for a government which is looking to cut costs
wherever possible. There has been widespread concern among secular
organisations at the growing influence of religious courts, a concern which was
given political expression by the One Law for All campaign which had called for amendments to the
Arbitration Act. In June 2012 Baroness
Cox, a crossbench member of the House of Lords, introduced the Arbitration and
Mediation (Equality) Services Bill ,
co-sponsored by the National Secular Society,
to curb the powers of religious courts especially in family
matters. The Bill would create a new
criminal offence of 'falsely claiming legal jurisdiction' for any person who
adjudicates upon matters which ought to be decided by criminal or family
courts, make explicit that these areas lie outside the remit of Arbitration tribunals
and that sex discrimination law applies to
arbitration tribunal proceedings. At its second reading in
October, the government refused to support it on the basis that many of the
amendments put forward in the bill were already provided for under current
The use of any religious laws in family matters should be disallowed and anyone seeking to arbitrate in family matters using religious laws should be criminalised. This is a radical proposition because it goes beyond the question of whether the law should grant such jurisdiction to religious courts and engages directly with the wider question of how far the law should accommodate religion. Whether the rulings are discriminatory or not, religious law must not be used in family matters. The proposition is made by SBS, and would sweep up sharia councils, MATs, the Beth Din and Catholic tribunals in its path, more than Baroness Cox, a devout Christian, would have bargained for. Of course, religious bodies support the ‘explicit accommodation of religious views through the “rule and exception” model of law’ like the Catholic Bishops conference stated in 2008, a model that other religions latch on to on the grounds of parity. The Catholic Bishops give examples such as ‘conscientious objection (the doctor refusing to do a termination)’, a rule and exception model that must be opposed by all self-respecting secularists.
The debate in Parliament, the campaign materials, the various supporters of the Bill referred almost exclusively to sharia laws. Although sharia has become a live issue because of the demographics of recent migration, at a time of anti-Muslim racism, it is extremely important not to be targeting only sharia but all personal religious laws. In this context, Cox’s Christian evangelical beliefs make her a problematic ally. She is co-founder of One Jerusalem whose stated mission is "maintaining a united Jerusalem as the undivided capital of Israel", a patron of the Christian Institute, an evangelical group that campaigns against abortion and gay rights, she is infamous for inviting Geert Wilders to show his anti-Islam film Fitna at the House for Lords, and supported the introduction of Christian assemblies in school. It is something Cox herself is aware of as she prefaced the debate in the House with the disclaimer that, "I immediately reassure your Lordships that I am not anti-Muslim." I asked Keith Porteous Wood, Executive Director of NSS , which stands for a separation between religion and state, whether he saw any contradictions in working closely with Cox. He said, “We will work with anyone on a common agenda, towards retaining one law for all” adding that “she’s the only one brave enough to take to take on this very worrying problem.”
On closer examination, it is obvious that we cannot ‘retain’ what we don’t have: one law for all. There are many unexamined and insidious ways in which the more established religions have already carved out a space for themselves within the legal and political system of the UK. All secular organisations should be supporting a more thorough root and branch reform.