In Oklahoma when they got concerned about sharia courts they had a constitutional amendment and a furious public debate; in Britain, by contrast, we get a private member’s bill in the House of Lords. Even though all the debate about the arbitration and mediation services (equality) bill has dealt with the question of sharia courts, the word “sharia” is never mentioned in the bill. Perhaps it would be better if we looked at the proposals in the bill to see is there is anything objectionable in them.
The bill amends the Arbitration and Equality Acts. A judgment in an arbitration carried out under the Arbitration Act is not simply a personal agreement between the parties involved; it is a legally binding decision made by an arbitrator, which can be registered with the civil courts and enforced by the state through bailiffs etc. Therefore the state does have a right to say what sort of legal principles or rules are applied by an arbitrator.
The proposals in the bill say that an arbitrator cannot work on the principle that the evidence of a woman is automatically worth less than that of a man or that a woman is automatically entitled to inherit less property than a man. The Islamic Sharia Council, in a somewhat confusing press release, has said that sharia tribunals do not, in any event, consider the evidence of women as being less than that of a man – in which case I find it difficult to understand why the council is objecting to the principle of equality being written into law.
The bill also says that criminal and family matters cannot be the subject of arbitration, which is already the common law position so putting it in statutory form is difficult to disagree with.
The bill also deals with the vexed question of mediation, which is perhaps the area where the archbishop of Canterbury went most spectacularly off the rails in his famous speech calling for the recognition of sharia in family mediation. What he failed to understand, and what the bill tries to address, is the fact that mediation is supposed to be a voluntary process that does not involve the application of legal rules, whether sharia or British.
What seems to have been increasingly happening, however, is that shariah councils are offering “mediation” services that are in fact laying down sharia rules, which both parties then sign and present to the family court pretending that it is a mediated agreement. Once a court accepts a mediation agreement it becomes a legally binding court order and so the law does have the right to question whether a mediation agreement is truly the result of “mediation”. What the bill proposes is to give courts the legal duty to make sure that any mediation agreement really has been properly and freely negotiated rather than the courts simply “rubber stamping” mediation agreements that are handed to them.
This general approval doesn’t mean that I don’t have some reservations about the bill. In particular I do not like the suggestion of creating new criminal offences of falsely claiming legal jurisdiction. If a sharia council is charging for its services, it can already be prosecuted for fraud if it falsely claims legal jurisdiction. If it doesn’t charge, why prosecute?
In addition since the police are not enforcing section 75 of the Marriage Act 1949, which makes it a criminal offence to perform a marriage ceremony that is not registered under the act, why should they enforce the new criminal offence? It is an open secret that most Muslim marriages are not being registered and therefore have no legal validity, which is something the wives frequently only find out when their “marriage” breaks up or their “husband” comes home with another “wife”. I recently attended a seminar at Cardiff University involving a study of Catholic marriage tribunals, Jewish Beth Din and a sharia tribunal. Both the Catholic and Jewish marriages were always legally registered while over half of the wives before the sharia tribunal had never been legally married in the first place.
This is a problem unique to Islam in this country and the bill does make some attempts to address it by giving public authorities the duty of informing parties in unregistered religious marriages or polygamous marriages that they do not have any legal rights and so encouraging them to register their marriage. That is rather late in the day and frankly the problem needs to be dealt with by ensuring that religious marriages are registered and imams prosecuted for performing unregistered and illegal marriage ceremonies.