Arbitration and Mediation Services (Equality) Bill [HL]

Baroness O'Loan Excerpts

Friday 19th October 2012 Lords Chamber

[Baroness O'Loan]

My Lords, I am very pleased to rise today in support of the Bill of the noble Baroness, Lady Cox. I, too, wish to convey to her my congratulations not just on her commitment and determination in bringing this Bill forward but, indeed, on all the work that she does—often in hot, distant and dusty places—for people who live in difficult circumstances.

This is a profoundly important Bill. It seeks to make the necessary amendments to entrench in law a very clear articulation of the restrictions under the rule of law in this country, which must necessarily be understood to be applicable to the processes of Sharia law as they operate in the United Kingdom today.

It is important to say, as previous speakers have done, that this is not in any way a matter of prejudice. However, there is evidence that even before Muslim women enter into marriage some 60% of them experience some degree of coercion before marriage. This Bill seeks to give Muslim women who may be coerced or pressed into allowing a dispute to be settled in the Sharia tribunals the capacity to understand and to be able to assert their rights under the law. Most particularly, it seeks to restrict abuses of the law by communities and individuals which may ensue in the course of the Sharia processes. The noble Baroness, Lady Cox, described graphically the terror that may be suffered by women in these circumstances.

Noble Lords will be very well aware of the history of the legal system of the United Kingdom. We are very proud of the way in which, generally speaking, the principles of law here have developed over the years and of the fact that we have a fine record of at least attempting to protect the rights of individuals—a protection which has grown infinitely since the passing of Magna Carta in 1215. Of course, there are many inadequacies in our legal system and these can result in great injustice and harm. Where we identify serious gaps—and the noble Baroness has identified a very serious gap today—then it is incumbent on us to address them as best we can.

We profess that certain rights are protected under UK law and that those whose rights are abused should have access to the legal system to seek redress. People who have suffered criminal assaults and those who seek relief in matrimonial matters have the right to anticipate that those matters will be dealt with in accordance with the principles of our law. Part 2 of the Bill states very clearly that in any arbitration agreement under the Arbitration Act 1996 the evidence of a woman shall be equal to that of a man. This may well be resisted by some of those involved but it is not acceptable that decisions made under the protection of UK law are based on profoundly discriminatory processes.

The reality today is that many women living in the UK have suffered as a consequence of the way in which these tribunals have been permitted to operate; the extent to which they have claimed jurisdiction which they do not necessarily have in areas such as criminal law and, I think, previously matrimonial law; the fact that they do not operate to provide equality of arms—a matter addressed by the noble Lord, Lord Carlile, a moment ago—in terms of representation, information and so on; and of the way in which their proceedings have been conducted. In addition, there is often a history of violence and duress, to which many women have been subjected over decades, leaving them in a position in which they may become physically incapable of asserting their rights.

It is Muslim women who are articulating these problems. The Iranian and Kurdish Women’s Rights Organisation stated:

“Sharia law discriminates against women and children and puts those who have experienced violence and abuse at further risk. Its rulings are incompatible with UK legislation including the Sex Discrimination Act 1975, the Children Act 1989 and the Human Rights Act 1989”.

In these circumstances, Clause 4 is vital. It is an absolutely clear statement that where the criminal courts have jurisdiction, arbitration is not a possibility, and that discrimination is unlawful. Clause 7 gives necessary teeth to this provision by making it a criminal offence, attracting serious sanctions, falsely to claim legal jurisdiction.

Under UK law, children’s interests are required to be the final determinant in matters affecting them, yet in many cases under Sharia law women are forced to give their husbands access to their children even where British courts have ruled that they should have no such access because it would not be in the interests of the child, perhaps because of a history of violence.

Many women who seek redress through their imam are subject to multiple disadvantages. The English language may form an impenetrable barrier for many. Women who are isolated in non-English speaking communities are completely subject to their husbands, just as English women were a century ago. They will have no access to, and no capacity to seek, justice. If a woman cannot speak the language, cannot get independent advice, is fettered by a loveless and violent marriage, and is caught in a culture which accords precedence in virtually all matters to the husband, life will be profoundly difficult. The psychological consequences of that situation are well known. Such women simply have no idea of their legal rights. They may be cowed and beaten into submission to Sharia law, under which there may be no redress for them and their testimony will not be accorded the same value as that of men. That is a very lonely place for a woman of whatever age to find herself. Many of these women find themselves locked in a violent or polygamous marriage when they had thought that they were entering a monogamous union registered under UK law, yet the only place they can go to seek advice is the imam.

The Bill of the noble Baroness, Lady Cox, seeks to address a very serious wrong. It will have wonderful effects. I accept that it may require some amendment, but it will outlaw once and for all the Sharia practice of giving women’s testimony half the weight of men’s; it will make clear the redress that women can seek under civil law; it will make discriminatory the assumption in Sharia law of unequal distribution of an estate between male and female children; it will make discriminatory the assumption that a woman has fewer property rights than a man and vice versa; it will give women who have sought refuge in the United Kingdom a clear articulation of the limits of the Sharia tribunals; and it will mean that any future unlawful assumption of jurisdiction can result in prosecution.

The Bill has the support of many lawyers and organisations working to help Muslim women in these difficult situations. The noble Baroness listed a number of them, so I will not do so again. I simply reiterate my support for the Bill.