Arbitration and Mediation Services (Equality) Bill [HL]

Baroness Cox Excerpts

Friday 23rd October 2015 Lords Chamber

Moved by

[Baroness Cox]

That the Bill be now read a second time.

[Baroness Cox (CB)]

My Lords, I am deeply grateful to all noble Lords speaking in this debate and to many other noble Lords, too many to mention by name, who have expressed their support for the Bill but who are unable to be here today. For example, my noble friends Lord Singh of Wimbledon and the former Archbishop of Canterbury the noble and right reverend Lord, Lord Carey of Clifton, have assured me of their support. In the words of the noble and right reverend Lord, Lord Carey:

“The Bill will strengthen the position of vulnerable women who need protection from exploitation. It will ensure that all such women, whatever sect or creed, get the help they need to enjoy full lives. There can be no exceptions to the laws of our land which have been so painfully honed by the struggle for democracy and human rights”.

I very much welcome the noble and right reverend Lord’s message, which highlights the two interrelated issues which this Bill seeks to address: the suffering of women oppressed by religiously sanctioned gender discrimination in this country; and a rapidly developing alternative quasi-legal system which undermines the fundamental principle of one law for all—a matter of especial significance as we mark the 800th anniversary of the signing of Magna Carta.

The Bill is also strongly supported by many organisations concerned with the suffering of vulnerable women, including the Muslim Women’s Advisory Council, Karma Nirvana, Passion for Freedom as well as by the National Secular Society: I am grateful to them all.

The concerns which the Bill seeks to address are even more urgent today than three years ago, when the Bill received a previous Second Reading. As the courageous Muslim woman Habiba Jaan said in her recent report Equal and Free?:

“There is a growing concern that many Muslim women in Britain today are suffering severe gender discrimination but lack knowledge of their rights under British law”.

Or, to use the words of another brave Muslim lady who shared her story with me:

““I feel betrayed by Britain. I came here to get away from this and the situation is worse here than in the country I escaped from”.

Many noble Lords here today have heard deeply moving and disturbing first-hand accounts of the suffering of women in our country during meetings of the All-Party Parliamentary Group on “Honour” Based Abuse. Some noble Lords will remember the story of Roma—a pseudonym, of course. She was physically abused by her husband, an overseas Pakistani student, but was so in fear of being rejected by her community that she did everything possible to avoid a divorce. However, when her husband could not obtain a visa, he sent Roma an Islamic divorce by post. She showed us a plain piece of paper with the words “I divorce you” three times. To use her words, and I will never forget the yearning in her voice,

“I felt that plain piece of paper was a mockery of my human rights”,

in this country.

Roma also referred to the process of halala, whereby a husband divorces his wife, possibly by saying “I divorce you” three times. If he then wishes to remarry her, she must marry another man, have that marriage consummated, then undergo another divorce; and only then can she remarry her original husband. Roma said that some husbands do this just to taunt their wives, and this is happening in Britain today.

Time permits only one more example. A consultant gynaecologist described to me a request from a 63 year- old man for a repair of the hymen of his 23 year-old wife. The gynaecologist refused as this is an illegal operation, whereupon the man became intensely angry, claiming that doctors in his town, not far from London, frequently undertake this operation under another name. He wanted this surgical procedure for his wife in order to take her back to their country of origin to marry another man. Her next husband could then obtain a visa to enter the UK. He would probably abuse and then divorce his wife and marry another or more wives here. The man who asked for this operation said that he earned about £10,000 for effecting this arrangement, which was very helpful as he was unemployed. Such shocking cases surely cannot be allowed to continue. The rights of Muslim women and the rule of the law of our land must be upheld.

On a related issue, my Muslim friends tell me that in some communities with high polygamy and divorce rates, men may have up to 20 children each. Clearly, youngsters growing up in dysfunctional families may be vulnerable to extremism and demography may affect democracy.

That brings me to identify the specific concerns to which the Bill seeks to draw attention. I recognise that its provisions cannot solve all the sensitive and complex issues involved, or many collateral issues, but I have been assured by the women whom they seek to help that they would be immensely useful. One Muslim woman phoned me this week to tell me that literally thousands of Muslim women are supporting this.

First, the Bill seeks to address arbitration tribunals which apply discriminatory rules. The Arbitration Act 1996 allows parties to agree how certain civil disputes, often financial, should be resolved, including disputes according to the law of another legal system. This permits arbitration to operate according to sharia principles. The Bill recognises legitimate forums for arbitration, including Muslim arbitration tribunals. It will not affect the continuation of these provisions in accordance with the law of the land.

However, there is a concern that even when these tribunals are operating within the terms of the Arbitration Act, some are practising sex discrimination, such as: inequality between men and women with regard to access to divorce; polygamy—a man can marry four wives; child custody, whereby in the event of a divorce a father may claim custody of his children, often at the age of seven; inheritance provisions under which women and girls receive only half of the amount of a legacy given to men and boys; and rules of evidence whereby the value of a woman’s testimony is deemed to be half that of a man’s. That is why the Bill seeks to close any loophole which might remain in the Equality Act 2010 and strengthens court powers to set aside rulings when discrimination has taken place, if the woman is subsequently unhappy.

The second concern relates to arbitration tribunals acting outside their remit; for example, by deciding cases relating to criminal law, such as those involving domestic violence and grievous bodily harm. The Home Secretary said in March that,

“there is evidence of … wives who are forced to return to abusive relationships because Shari’a councils say a husband has a right to ‘chastise’”.

I therefore very much welcome the Government’s commitment to launch an independent review to understand the extent to which sharia law is, to use the Government’s own phrase,

“being misused and applied in a way which is incompatible with the law”.

The suffering of vulnerable women subjected to abuse can be exacerbated by the nature of the closed communities in which they may live, where they can be subjected to enormous pressure not to seek outside professional help because that might be deemed to bring “shame” on the family or the community. In many cases, women have suffered further difficulties because police, civil authorities and professional personnel have been reluctant to take action that might be deemed to give offence to the leaders of these communities.

This relates to the third concern that the Bill seeks to address: the crucial matter of consent, which must be at the heart of both arbitration and mediation. Arbitration or mediation ought to be voluntary. But women may be pressured by their families into going to sharia councils or courts. They may also lack the knowledge essential for an informed choice, such as the English language and their rights under British law. I quote from the Government’s recent Counter-Extremism Strategy:

“Most concerning of all, women are unaware of their legal rights to leave violent husbands and are being pressurised to attend reconciliation sessions with their husbands despite legal injunctions in place to protect them from violence”.

The Bill therefore creates an enhanced mechanism for court orders to be set aside if they were based on non-consensual agreements.

Any woman who does come forward needs the full protection of the law because she may well be doing so in the face of intimidation and overwhelming pressure not to bring shame on the family and community. That is why the Bill also makes it explicitly clear, in Clause 5, that a victim of domestic abuse is a witness to an offence.

The fourth concern relates to the estimated 100,000 couples in Britain who are living in Islamic marriages not recognised by English law. Of course, any person is entirely free to be in a religious marriage without legal registration. However, it is important for people doing so to be aware of the legal disadvantages. The 2014 Aurat report by Habiba Jaan, to which I have already referred, described Muslim women’s experience of marriage in the West Midlands. The majority of women who had a religious-only ceremony were unaware that their marriage was not officially recognised by English law. Many were deeply disturbed when they discovered their predicament and said they wished they had known the reality of their situation and its implications.

I raised this issue with an amendment to the Anti-social Behaviour, Crime and Policing Bill in 2013. It would have required the celebrant of any religious, non-legally registered marriage to ensure that both parties to the marriage were aware of the implications. Unfortunately, the Government missed this opportunity to help these women. I trust that Government will now take the opportunity to support the Bill’s very moderate provisions, which simply place a duty on public bodies to ensure that women are not misled as to the legal status of their marriage.

In conclusion, it is important to emphasise that the Bill does not specify any particular faith tradition. If women from other faiths experience systematic discrimination, the provisions of the Bill would also be available for them. It is also important to recognise that that the Bill does not interfere with the internal theological affairs of faith groups. If a woman with devout convictions accepts religiously sanctioned gender discrimination, the Bill would not inhibit the practice of her faith. But the problems I have highlighted often arise because choice is not informed or genuinely free.

I hope, therefore, that the proposals will receive a more sympathetic response from the Minister than on the previous occasion, when the Government claimed that there was no need for such provisions as all citizens can access and benefit from their rights according to law. The chasm between the de jure situation and the de facto reality is an abyss into which countless women are falling. I trust that, with the evidence that has been accumulated since the previous Second Reading, the Government’s response today will be more realistic and will welcome the modest provisions of the Bill, which are strongly supported by Muslim women and organisations that represent them, as well as those committed to the preservation of the fundamental principle of democracy of one law for all. I beg to move.

--- Later in debate ---

[Baroness Cox]

My Lords, I am deeply grateful to all noble Lords who have spoken and for the widespread support for this Bill from all parts of your Lordships’ House, as well as to all those who support it in another place and outside Parliament. I am aware that there are two more Second Reading debates on very important issues. Therefore, I will be brief and not respond now to every point which deserves a reply. I assure noble Lords that if any of them have criticisms, reservations or suggestions for improvement, I would be very happy to discuss them and to consider any amendments for Committee and Report that would improve the Bill in any way.

I also thank the Minister for his response. I had sincerely hoped that, in light of ever-growing evidence of cause for concern, the Government would have moved in a more sympathetic direction to consider the very modest but much-needed measures to address some of the problems which currently threaten that fundamental principle of “one law for all” and to alleviate the problems of very real gender discrimination which cause such suffering to so many women in this country in ways that would make the suffragettes turn in their graves.

I have said previously that I appreciate the Government’s initiatives, especially the proposed investigation into the operation of Sharia courts. But provisions in this Bill are in no way incompatible with such investigation: indeed, they could be helpful. Delays in implementing some of the support mechanisms for women who are suffering, in the ways the Bill proposes, will leave many women continuing to suffer without the help which could be made available if the Bill could become law. We are aware that it is not a total solution in any way but it is believed by many Muslim women, by organisations representing Muslim women and by organisations representing human rights that the modest proposals in the Bill would be of immense value now.

I conclude with a quotation from Caroline Norton, the legendary figure of the struggle for women’s rights in this country who predated even the suffragettes. She said that,

“women are not appealing for an exceptional law in their favour; on the contrary, they are appealing not to be made an exception from the general protection of the laws”.

Caroline Norton was campaigning, inter alia, for women’s custody rights over their children, for greater equality before courts for divorce and simply for women’s status before the law. It is disturbing that here we are having to support a similar campaign for women in our country, in our day, who are denied those rights. Those who say that we should be culturally sensitive to the practice of communities which deny these rights are seeking to turn the clock back not simply to the suffragettes but even further, to the battles fought by Caroline Norton and others of her time nearly 200 years ago.

I hope, passionately, that the very modest measures in the Bill will receive the support of the Government in due course and that, in the mean time, our demonstration today in your Lordships’ House will give some comfort to those who currently suffer in ways which should be utterly unacceptable in our democracy with our cherished commitment to the eradication of gender discrimination and the preservation of one law for all.

Bill read a second time and committed to a Committee of the Whole House.