Arbitration and Mediation Services (Equality) Bill [HL]

Lord Keen of Elie Excerpts

2nd reading (Hansard): House of Lords
Friday 27th January 2017 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I join all sides of the House in putting on the record my admiration not only for the determination of the noble Baroness, Lady Cox, but for the courage of the women to whom she has listened. Without their courage and that of others, we would not be debating this sensitive problem today. I understand the desire of the noble Baroness and her tireless fight to bring this matter out of the shadows and into the light of day. The Government are absolutely clear: we share the concerns raised by noble Lords in the debate that people can suffer because of decisions made by sharia councils in particular, or because the families and communities of coerced persons prevent them from understanding that they are as equal before the law as any Member of this House. These are concerns that the Government take very seriously. We know that any effective proposals to address the problem must come from thoroughly understanding its complexities and source. That is why the Prime Minister, in her previous role as Home Secretary, launched the full, independent sharia review last year, chaired by Professor Mona Siddiqui. That is also why the Government, on the broader problem of opportunity and integration, of which disadvantage to Muslim women is part, commissioned the independent review by Dame Louise Casey, who reported last month. Your Lordships will see that the Government are committed to shining a light on this problem.

Your Lordships will know, too, that women’s experiences of sharia councils and the issue of unregistered marriage are central to the sharia review. The Casey report has framed concerns about these in the broader narrative about how people with different backgrounds can be part of a cohesive society—a point touched on by many noble Lords in the debate. The report found that British Muslims overwhelmingly had a strong sense of belonging to Britain. We should not lose sight of that larger picture.

The Government are absolutely clear too that the authority of the courts in England and Wales is intact. There is and will be no parallel legal system. People are free to live their own lives according to their religious principles and the Government will not prevent them doing so. What there is in sharia and other religious councils is a means for people to seek decisions that will carry weight with their communities. This entire process should be voluntary and free from any form of force, but we have heard today of instances in which it is not. What for some is religious freedom is for others a source of injustice. That is the key to the problem before us. By its nature, of course, this is a problem that is not amenable to any easy solution.

Your Lordships have raised many of the issues that were put to Dame Louise relating to sharia councils and the reasons why some women may have recourse to them. We should always acknowledge that there are Muslim women for whom a religious pronouncement of divorce is important and who freely and knowledgeably choose to go to a sharia council, as followers of other religions may do with their own councils. It is important to acknowledge this: as I have said, the Government have no wish to curb religious freedom. None the less, it is of serious concern to us where women may have recourse to sharia councils because of coercion or lack of awareness of their rights. We appreciate that behind much of this are also the problems of lack of integration, of understanding, of language skills and sometimes of education. The source of that is very much lack of opportunity. The Casey report frames these issues in the contexts of integration, but also, crucially, of opportunity and understanding. That is a context we should never lose sight of.

I assure the House that the Government are taking the findings of the report extremely seriously. Like my right honourable friend the Secretary of State for Communities and Local Government in another place, however, I do not wish to say anything that might prejudge our response to the Casey report in spring this year or, for that matter, to the findings of the independent sharia review.

With that in mind, I turn to the measures in the Bill. As noble Lords are aware, sharia councils are not part of the court system in this country. I noted references to sharia courts on occasion in the debate. We do not recognise the existence of sharia courts. We understand the danger that some sharia councils may purport to perform as courts or hold themselves out as courts, but they have no legal means of enforcing their decisions. Furthermore, the evidence at this stage is that very few sharia councils will carry out arbitration, and then in only very limited circumstances. We appreciate, none the less, that there have been concerns about arbitration by sharia councils in some instances, or about their straying into matters that only a court can adjudicate on. I assure the House that the Government are taking those concerns on board and view them very seriously.

The Government do not consider it necessary to amend the Equality Act 2010, as Part 1 of the Bill proposes, so that it applies to arbitral tribunals. Section 33 of the Arbitration Act 1996 already imposes a duty on arbitral tribunals to act fairly and impartially, and awards can be challenged in the court if this duty is breached or there is any other serious irregularity. Section 142 of the Equality Act 2010 already makes contracts unenforceable if they treat someone in a discriminatory way. That would apply to contracts as a result of mediations that were discriminatory, including any that might be facilitated by religious councils.

The Government still consider that amending the public sector equality duty is neither the best way to address this issue nor an appropriate use of the duty. I am the Government. The duty is broad—deliberately so—and the Government remain concerned that this breadth of application could be undermined if specific requirements were to be separately identified within it.

Part 2 proposes amendments to the Arbitration Act 1996. The existing law already imposes on tribunals a mandatory duty to act fairly and impartially. Where the family court in England and Wales has discretionary powers to make orders, such as in relation to making arrangements for children following the breakdown of a parental relationship, it is not possible to enter into an agreement to be bound by the outcome of an arbitration process, as a court could always override that outcome.

Part 3 proposes amendments to the Family Law Act 1996. It is, however, already the case that contracts cannot be enforced if they are made under duress. In family law cases, a judge will not make an order based on a negotiated agreement unless satisfied that there was genuine consent. Because the family court already has the power to set aside such orders, the Government’s view remains that the amendments proposed are unnecessary in this context.

The Government do not lightly create new offences. Before we might have cause to consider the new criminal offence of falsely claiming legal jurisdiction proposed in Part 4, we would need to consult and to hear compelling evidence that it was genuinely necessary. We would also wish to await the findings of the independent sharia review.

I appreciate that the noble Baroness, Lady Cox, may be disheartened that she has not persuaded the Government that her Bill would be necessary or effective. Our reservations about it remain.

[Lord Carlile of Berriew]

The noble and learned Lord said that a new criminal offence is unnecessary. Does he not agree that the criminal offence of holding oneself out as a medical practitioner has been extraordinarily effective? Does he not think that there is an extremely strong case not for doing nothing but for providing a similar sort of offence for those who hold themselves out to be a court or tribunal?

[Lord Keen of Elie]

There are, of course, provisions already in respect of that. We do not propose to do nothing, as I seek and have sought to explain.

As I said, our reservations about the Bill remain. It would be unfortunate for the Government to rush into any legislative change that did not, in the end, turn around the experience of the women whom the noble Baroness seeks to champion.

[Lord Cormack]

A few moments ago my noble and learned friend gave us a variation on “l’etat c’est moi”. Having listened to the debate, which I trust he has, and having heard persuasive speeches from all parts of the House, will he at least, in his capacity as the Government, which he has proclaimed to us all, agree to meet all of us who have spoken in the debate and have further discussions?

[Lord Keen of Elie]

I am perfectly prepared, as I represent the Government at the Dispatch Box, to take forward further discussions on this matter. Those discussions could most constructively be held once we have the sharia review available and once we have our response to the Casey report in the spring. The noble Lord might want to contemplate further discussion in that context. We are not seeking to delay; we are seeking to get this right.

We have not left the matter there, either. I do not wish to detract from the immediate focus of today’s debate, but there are other areas in which we are taking matters forward. Many noble Lords have spoken on the issues of understanding, of education and of the appreciation of rights which underpin many of the difficulties that Muslim women face in the context of sharia councils. We are now spending substantial amounts each year on assisting people to integrate into our society, particularly by arranging for the teaching of English. That is but one step, I appreciate—but it is a step in the right direction.

Turning again to the issue of unregistered religious marriage that underlies much of the recourse that women have to sharia councils, I note that there is no consensus on the issue—or, indeed, on sharia councils themselves—even among Muslim women’s groups. Several divergent suggestions have been put forward on the matter of marriage. One, for example, suggests regarding Islamic marriages as void, so that parties can seek financial remedies. Another suggests requiring religious ceremonies to be preceded by a civil ceremony, as in some other jurisdictions. The Casey report emphasised the importance of registration of marriage. All these issues will have to be considered.

The noble Baroness, Lady Cox, moved an amendment a few months ago in Committee on the Policing and Crime Bill. It required celebrants of religious marriages to comply with marriage law and to register the marriage, as well as introducing a criminal offence of failing to meet the requirements. However, as my noble friend Lady Chisholm said in the debate, it is unclear how many unregistered marriages would continue. Marriage is not a straightforward area of law, as these divergent suggestions show, and particular difficulties arise when women are unaware that their marriage has no legal effect.

My noble friend indicated that the Government will consider unregistered religious marriages in light of the sharia review which is expected to report this year. That remains the case. It is clear from Dame Louise Casey’s report that integration, education and understanding are significant in how we address the issues we have been debating today—many noble Lords acknowledged that. We await the Government’s response to the report so that we can take this matter forward.

I turn to particular points made by noble Lords in the debate. The noble Baroness, Lady Donaghy, referred to the continuing fight for women’s equality. I do not intend to engage in a fight with the noble and doughty Baroness, but I see women’s equality—indeed, all aspects of equality—as more than just a goal: it is a journey. As any wise traveller knows, when you are on a journey you constantly and regularly check your progress, your destination and the obstacles in your way. The spikier parts of inequality have been addressed, but the issue has not been resolved, and it will be a continuing journey.

On the question of the independent review, I indicated that that will report this year. As for the Law Commission, we are considering its report in conjunction with that of Dame Louise Casey. The noble and learned Lord, Lord Mackay of Clashfern, among many noble Lords, referred to the subtle pressures that are brought to bear on women in the present context and the need to identify the reality of consent. Again, that goes back to the theme of education and understanding, rather than sharp-end legislation. The noble and right reverend Lord, Lord Carey of Clifton, talked about the need for sharia courts to comply with civil law. I do not even recognise the concept of a sharia court, but I take him to refer to sharia councils—and, yes, they are bound by the rule of law, and the law is there to correct abuse.

The noble Lord, Lord Anderson, assured us that he agreed with himself—I am sure we all take comfort from that. He talked about the judiciary making women aware of what their rights are. Yes, that is important, but it should be more than just the judiciary: we should all be making an effort, whether it be central government, local government, social services or police forces, to make women aware of their true rights and what their families’ true obligations amount to.

The noble Lord, Lord Carlile of Berriew, whom I was pleased to hear from behind me—if perhaps a little too far to the right—also talked about the need to intervene in circumstances where there is an abuse of alternative dispute resolution. Such alternative dispute resolution, as many noble Lords said, is to be welcomed, but it must operate within the law, and we must make that clear.

A question was raised about the extent, if any, of central government funding to sharia courts. Again, I say that I do not recognise the existence of sharia courts. I am not aware of UK government funding to sharia councils. It is possible that there is funding for particular projects carried out by such councils. Although I do not have such details to hand, I undertake to write to my noble friend Lord Bridgeman to confirm such details as we have of any alleged UK funding for sharia councils.

Finally, the noble Lord, Lord Kennedy, spoke of all those rights that we enjoy, or that we are at least entitled to enjoy, within the United Kingdom. But those rights also include the right to religious freedom. That is why it is so important to ensure that we do not upset a delicate balance between rights and obligations. That is why the Government will look at this matter with great care in light of the sharia review, the Casey report and the recommendations of the Law Commission.

[Lord Blencathra]

I think my noble and learned friend has acknowledged that the cases quoted by all noble Lords who have spoken are real and genuine—there is grave injustice there—but he has shot down every suggestion in the noble Baroness’s Bill to deal with them—and he has just said that the Government will look “with great care” following the sharia review. I hope your Lordships will forgive me for being cynical, but that sounds like kicking this into the long grass again. Looking at it “with great care” sounds like rather slow motion. If the sharia review suggests there is a problem, can we have a guarantee that there will be government legislation sooner rather than later?

[Lord Keen of Elie]

The noble Lord will appreciate that, even at the Dispatch Box, I cannot give guarantees of government legislation.

[Lord Carlile of Berriew]

But you are the Government.

[Lord Keen of Elie]

That is beyond my pay grade. However, I challenge the suggestion that I have sought to shoot down the various proposals made by the noble Baroness, Lady Cox. I acknowledge the importance of the issue that she has brought before this House. I acknowledge the importance of us being able to address these issues openly and effectively. I acknowledge the importance of considering whether all persons within the United Kingdom—and they are not required to be British citizens for this purpose—have the protections of the rule of law in the face of coercion or threat, even if it is supposedly religious-based. Therefore, I do not accept that I have sought to shoot down the proposals put forward by the noble Baroness, Lady Cox.

There are aspects of the Bill which we would say are legislatively unnecessary because of existing legislation. There are aspects of the Bill which we would consider need to be thought through with greater care. There are issues here that should be considered in light of the sharia review, which is coming out this year, and in light of the report from Dame Louise Casey, which we received in December, just one month ago—and we intend to do that. We do not intend to head in the direction of any long grass in that context.

[Lord Anderson of Swansea]

We have not heard any mention of the principles on which the Government rest. Do they at least accept in principle that to give less weight to a woman in any adjudication is wrong?

[Lord Keen of Elie]

Do I need to repeat that? With the greatest of respect, this Government and certainly I would never consider that there was any basis for such a proposition. I acknowledge the need for equality not just of gender but in all respects. This Government acknowledge the importance of equality not just in respect of gender but in all respects. But in pursuing it we must have regard to the rights of individuals to perform their own religious functions in a way they see fit. But above all of this stands the rule of law and we remain determined to ensure that those who purport to carry out religious functions do so in accordance with the rule of law and with respect for all individuals, whatever their gender or ethnic background.

I assure the noble Baroness that this Government are concerned about the issues that have been raised, understand the seriousness of the issues that have been raised and appreciate the contributions that have been made by your Lordships’ House in addressing these points. I therefore express to her and all noble Lords who have spoken today my sincere appreciation of their contributions on what is not only an important issue but a complex one.

[Lord Kennedy of Southwark]

We have all heard the Minister’s concern, his appreciation and everything else—but can he just tell us what is going to happen next for the Government?

[Lord Keen of Elie]

My Lords, I thought that I had already explained it. Lest the noble Lord was not in the Chamber at that stage, we are considering the Casey report, which was received in December of last year; we are awaiting the sharia review; and we will bring these materials together in order that we can establish an informed view of the extent of the problem and what the potential solutions may be.

[Lord Kennedy of Southwark]

I thank the Minister for that. I am very worried now when I hear the word “review”. I tabled a couple of Written Questions asking what “review” means when it is mentioned at the Dispatch Box. I was told in a Written Answer from the Government that there is no definition of a review. The Minister will appreciate that when I hear that word I am very worried about what it actually means. I hear what the Minister says but, equally, I hope that he has heard the concern from all round the House in this debate.

[Lord Keen of Elie]

I have of course heard the concerns that underpin this Private Member’s Bill. I have of course also understood the depth of feeling and the depth of concern that there is to see these problems addressed.