Sharia Law Courts

Debate between John Howell and Nick Thomas-Symonds

Thursday 2nd May 2019 Westminster Hall

[John Howell (Henley) (Con)]

I beg to move,

That this House has considered sharia law courts in the UK.

It is a great pleasure to serve under your chairmanship, Mr Hanson. I am extremely grateful to all hon. Members who have turned up on a Thursday afternoon when there is not much business on and at a time of local elections. That shows their devotion to this House and to the subject of this debate.

The genesis of this debate is a report prepared for the Council of Europe in January, at which I happened to speak. The report was led by a paper prepared by a member of the Spanish Socialist party, and it looked at the compatibility of sharia law with the European convention on human rights. I will turn to that topic later. The report singled out the UK, not completely approvingly, for how it approached this issue, as well other countries, such as Greece, which have taken a different approach.

When approaching this issue, I am aware that the charge of Islamophobia may be levelled against us, but it is right that we consider sharia law courts or councils in terms of their conformity with the European convention on human rights, just as we do with other aspects of UK society. I am also aware of “The independent review into the application of sharia law in England and Wales”, which was produced in February 2018. The review was chaired by Professor Mona Siddiqui of the University of Edinburgh, and the panel included distinguished lawyers and religious and theological experts. I read that report with great interest.

The Council of Europe called on the authorities of the United Kingdom to do a number of things. I will read them out but comment on only one of them. First, it called on the UK to

“ensure that sharia councils operate within the law, especially as it relates to the prohibition of discrimination against women, and respect all procedural rights.”

Secondly, it called on the UK to review the Marriage Act 1949,

to make it a legal requirement for Muslim couples to civilly register their marriage before or at the same time as their Islamic ceremony, as”—

the report claims—

“is already stipulated by law for Christian and Jewish marriages.”

As an aside, I am aware that a number of imams are also qualified registrars and can therefore conduct the civil service at the same time as the religious service. Similarly, a number of Catholic priests are qualified registrars. However, I do not think there is a legal requirement for that to go ahead.

Thirdly, the Council called on the UK to

“take appropriate enforcement measures to oblige the celebrant of any marriage, including Islamic marriages, to ensure that the marriage is also civilly registered before or at the same time as celebrating the religious marriage.”

Fourthly, it called on the UK to ensure that vulnerable women are provided with safeguards against exploitation and informed about their right to seek redress before UK courts. The Council also called for awareness-raising campaigns to be put in place, to encourage Muslim communities to acknowledge and respect women’s rights in civil law, especially in marriage, divorce, custody and inheritance. As an aside, I think there is a lot to be said for emphasising that particular point and ensuring that we indulge in awareness campaigns.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I agree with the hon. Gentleman’s point about awareness. Like him, I carefully read the independent Home Office report, which said:

“It is this misrepresentation of sharia councils as courts that leads to public misconceptions over the primacy of sharia over domestic law and concerns of a parallel legal system.”

Although the hon. Gentleman has been careful with his language, as I would expect, the Order Paper says “sharia law courts”, which is precisely what the Home Office report said we should avoid.

[John Howell]

I realise that the independent report calls them sharia law councils, but we can come on to look at that in the moment. I was reading out the Council of Europe’s descriptions, which calls them sharia law courts. We should continue with that, at least for the moment.

The Council’s next point was that the UK should

“conduct further research on the ‘judicial’ practice of Sharia councils”—

to use that term—

“and on the extent to which such councils are used voluntarily, particularly by women, many of whom would be subject to intense community pressure in this respect.”

The Council of Europe committee held meetings with Professor Ruud Peters of the University of Amsterdam and Professor Mathias Rohe of Erlangen University in Germany. On 5 September 2017 it held another hearing and the participants included Mr Konstantinos Tsitselikis, professor in human rights law and international organisations at the University of Macedonia, and Ms Machteld Zee, a political scientist and author. Finally, I was pleased that the committee held an exchange of views with Professor Mona Siddiqui, whom I have already mentioned.

Professor Sandberg from Cardiff University has recently said:

“Surely the issue of concern is whether people are pressurised into the form of alternative dispute resolution provided by Sharia councils? The Resolution distinguishes between situations where Muslims submit voluntarily and, alternatively, where they submit under social pressure”.

He says that the report does not pursue that any further and:

“That, however, is the nub of the issue.”

He goes on to say:

“Where the decision to use a religious authority for dispute resolution is genuinely voluntary on the part of both parties then this should be no more objectionable than any other form of alternative dispute resolution”—

provided that it also conforms with UK law.

As the Council’s report makes clear, sharia law is understood as the law to be obeyed by every Muslim. It divides all human action into five categories: what is obligatory, recommended, neutral, disapproved of and prohibited. It makes two forms of legal ruling: one designed to organise society and one to deal with everyday situations. It also has a legal opinion, intended to cover a special situation.

Sharia law, therefore, is meant in essence to be a positive law, enforceable on Muslims. Although most states with Muslim majorities have inserted in their constitutions a provision referring to Islam or Islamic law, the effect of those provisions is largely symbolic or confined to family law. Those religious provisions may have a legal effect if raised in the courts, and a political effect if they intrude into institutional attitudes and practices.

I shall consider the general principles of sharia law in relation to the European convention on human rights, particularly article 14, on the prohibition of discrimination on grounds such as sex and religion, and article 5 of protocol 7 to the convention, which establishes equality between spouses in law. Other aspects of the convention may also have an effect.

In Islamic family law, men have authority over women, because God has made the one superior to the other. It goes on to say that good women are obedient. It encourages women who stray from those norms to suffer punishment. In sharia law, adultery is strictly prohibited, and legal doctrine holds that the evidence must take the form of corroborating testimony from witnesses to prove an individual’s guilt. In the case of rape, which is seldom committed in public, there must be four male witnesses who are good Muslims, so punishing the rapist is difficult, if not impossible. In practice, women are obliged to be accompanied by men when they go out, which is not conducive to their independence.

Under Islamic law, a husband has a unilateral right to divorce, although it can be delegated to the wife and she can therefore exercise her right to divorce. Otherwise, she may initiate a divorce process but only with the consent of her husband, by seeking what is known as khula, in which case the wife forgoes her dowry. In cases where the husband has deserted the wife, has failed to co-operate with the divorce process or is acting unreasonably, the marriage may be dissolved, but only by a sharia ruling. While divorce by mutual consent is enshrined in Islamic law, the application must in this case come from the wife, since the husband can repudiate his wife at any time. There is also the question of equal rights regarding divorce arrangements, such as custody of children.

For the division of an estate among the heirs, distinctions are made according to the sex of the heir. A male heir has a double share, whereas a female heir has a single share. In addition, the rights of a surviving wife are half those of a surviving husband. Non-Muslims do not have the same rights as Muslims in criminal and civil law under sharia law. That applies, for example, to the weight attached to their testimony in court, which is discrimination on the grounds of religion within the meaning of articles 9 and 14 of the convention.

The European Court of Human Rights had the chance to rule on the incompatibility of sharia law with human rights in the early 2000s, in its judgment on the Welfare party v. Turkey, which held that

“Turkey, like any other Contracting Party, may legitimately prevent the application within its jurisdiction of private-law rules of religious inspiration prejudicial to public order and the values of democracy for Convention purposes (such as rules permitting discrimination based on the gender of the parties concerned, as in polygamy and privileges for the male sex in matters of divorce and succession).”

In that particular case, the decision by the Turkish constitutional court to order the dissolution of the Welfare party, which advocated the introduction of sharia law, was held to be compatible with the convention, and the Court clearly affirmed the following:

“It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts.”

With respect to sharia law itself, the Court expressly stated that

“a political party whose actions seem to be aimed at introducing sharia in a State Party to the Convention can hardly be regarded as an association complying with the democratic ideal that underlies the whole of the Convention”.

However, although the Court has ruled that sharia law is incompatible with the convention, that does not mean that there is absolute incompatibility between the convention and Islam. The Court also recognised that religion is

“one of the most vital elements that go to make up the identity of believers and their conception of life”.

Accordingly, the Court’s relatively firm position should not be taken as a rejection of all elements of sharia or of Islam as a whole, while taking into account the existence of structural incompatibilities between Islam and the convention which, as far as sharia law is concerned, are sometimes absolute and sometimes relative.

It is also likely that a large number of cases concerning the position of Muslim women under Islamic law never come before the ordinary courts or the European Court of Human Rights because women are under enormous pressure from their families and their communities to comply with the demands of the informal religious courts. Such cases give rise to the question whether to use the concept of public order to refuse to recognise, or enforce, discriminatory decisions, even if they are not challenged by the women concerned.

There is currently no single accepted definition of the term “sharia council” in the United Kingdom, where such bodies generally provide advice and attempt to resolve disputes relating to family or personal issues according to the principles of sharia law. However, little is known about their work, which is conducted in private, and decisions are not published, leading to a lack of transparency and accountability. There is also uncertainty about the number of sharia courts operating in the UK. A study by the University of Reading identified 30 groups involved in such activity, and a report by the think-tank Civitas estimated that at least 85 groups are in operation, although that figure also includes informal tribunals run out of mosques or online forums.

Sharia councils provide a form of alternative dispute resolution, something I am very familiar with, having chaired the all-party parliamentary group on alternative dispute resolution for the past three years. Members of the Muslim community voluntarily consent to accept the religious jurisdiction of sharia councils. Marital issues and the granting of Islamic marriage divorces account for about 90% of their work. They also advise in matters of law, including issues of inheritance, probate and wills and Islamic commercial law contracts, and they provide mediation, counselling and religious ruling services.

Sharia councils are not considered part of the British legal system. They are not courts and their decisions are not legally binding. However, despite having no judicial authority, some councils see themselves as authoritative on religious issues, and the power of sharia councils lies in how they are perceived by their communities.

A significant number of Muslims do not have a marriage recognised under British law. Those who do not register their marriage under civil law, and some who have been married abroad, have little redress available to them, as their position under British law is similar to that of unmarried cohabitants who have few financial remedies on the breakdown of their relationship. A significant number of Muslim couples fail to civilly register their religious marriages, and some Muslim women therefore have no option of obtaining a civil divorce. Some women may have no other option but to obtain a religious divorce, for which the judgment of a sharia council is normally required.

Furthermore, even in cases where women have a civil law marriage, some might seek the decision of a sharia council for reasons of self-identity or community standing, or to provide reassurance that they have the religious freedom to remarry within their faith. Those who obtain a civil divorce but not a religious divorce might find it difficult to remarry—a position sometimes referred to as a “limping marriage”. One of the experts invited to testify before the committee, Ms Zee, denounced what she described as “marital captivity”.

There are numerous reports citing examples of how Muslim women have been discriminated against by sharia councils. Examples of such discrimination include women being pressured into mediation, including victims of domestic abuse; greater weight being given to the husband’s account of reasons for divorce; women not being questioned impartially by council members, who are almost all men, and feeling blamed for the breakdown of the marriage; and unjustified requirements to pay back their dowry.

There are also allegations that sharia councils have issued discriminatory rulings on child custody. The Casey review cited claims that

“some Sharia Councils have been supporting the values of extremists, condoning wife-beating, ignoring marital rape and allowing forced marriage.”

Researchers were told that

“some women were unaware of their legal rights to leave violent husbands and were being pressurised to return to abusive partners or attend reconciliation sessions with their husbands despite legal injunctions in place to protect them from violence.”

The majority of the evidence, however, is anecdotal, as little empirical evidence has been gathered in relation to users of sharia councils. Further research is therefore necessary; I am aware that the Select Committee on Home Affairs has done some work. Mechanisms are required to provide safeguards and ensure that vulnerable women are not exploited or put at risk. Many of the women are not aware of their rights to seek redress before the British courts.

Sharia councils should not be confused with arbitration tribunals. The Muslim arbitration Tribunal was established in 2007 under the Arbitration Act 1996. It operates within the framework of British law and its decisions can be enforced by civil courts, provided that they have been reached in accordance with the legal principles of the British system. Its legal authority comes from the agreement of both parties to give the tribunal power to rule on their case. In cases where decisions do not conform to the principles of British law, they may simply be quashed. Moreover, the 1996 Act cannot be used to exclude the jurisdiction of the family law courts. The MAT can therefore conduct arbitration according to Islamic personal law on issues such as commercial and inheritance disputes. Many of those issues were considered by Baroness Cox, who promoted the Arbitration and Mediation Services (Equality) Bill in 2011. I will leave hon. Members to look at that.

The independent review was set up because sharia courts were deemed to be discriminating against women, as I have outlined. It has three recommendations. The first is to ensure that civil marriages are conducted before or at the same time as the Islamic marriage, in line with the way in which most Christian and many Jewish marriages are conducted. It also states that there should be a requirement for Muslim couples to civilly register their marriage, and that there be consequential changes to divorce.

I will skip the second recommendation and go to the third recommendation, which is to carry out some regulation of the sharia courts. The Government have declined to do that, for the obvious reason that that would legitimise the courts as part of the judicial establishment, which they have no intention of doing. To go back one, the second recommendation is for a general awareness campaign to acknowledge women’s rights and to inform women of those rights, including the fact that arbitration that applies sharia law in respect of financial or child arrangements falls foul of the Arbitration Act.

The independent review sets out several bad practices, including inappropriate and unnecessary questioning about personal relationship matters; asking a forced marriage victim to attend the sharia council at the same time as her family; insisting on any form of mediation as a necessary preliminary; and inviting women to make concessions to their husbands to secure a divorce. Lengthy processes also mean that, although divorces are rarely refused, they can be drawn out.

There are several other faults with the system, such as inconsistency, a lack of safeguarding policies or clear signposting, and the fact that, even with a decree absolute, a religious divorce is not always a straightforward process. Civil legal terms are adopted inappropriately, which leads to confusion. There are few women panel members of sharia councils, and some panel members have only recently moved to the UK, so they have no understanding of the UK system.

It is often proposed that, based on the evidence of discriminatory practices in some sharia councils, they should all be shut down and banned. The main problem with that argument is that a ban cannot be imposed on organisations that can set up voluntarily anywhere and that operate only on the basis of the credibility given to them by a certain community. The evidence that the review heard indicates that women use sharia councils almost solely to obtain religious divorces, for a number of different reasons, such as community acceptance of the divorce and their own remarriage hopes.

It is clear from all the evidence that sharia councils are fulfilling a need in some Muslim communities. There is a demand for religious divorce that is being answered by the sharia councils. That demand will not simply end if they are banned and closed down; instead, that could lead to them simply going underground, which would make it even harder to ensure good practice and would make discriminatory practices and greater financial costs more likely and harder to detect.

The main point is that there needs to be an acceptance of the law of the land, as there is within other communities, particularly the Jewish community, whose members accept that British law overrides their religious law. It is impossible to understand why somebody would enter a sharia court voluntarily, when they know that they are going to be under pressure to conform with whatever is said there. I discussed that with another Minister, who had better remain nameless. She was incandescent about sharia courts and told me to warn the Minister not to give a mealy mouthed response, or she would be after him. I mention that as an aside; I do not want to influence what the Minister will say at all, but that is a good indication that, particularly among women—that Minister was a Muslim lady—the effect of sharia courts is quite controversial. I am glad that the Home Affairs Committee took evidence on the issue.

Human Rights in the UK

Debate between John Howell and Nick Thomas-Symonds

Wednesday 13th February 2019 Westminster Hall

[John Howell]

When the EU decided to bring out its own human rights framework, it thought very carefully about what should be included, and it differs from the European Court of Human Rights on only a few exceptions.

[Nick Thomas-Symonds (Torfaen) (Lab)]

The European convention on human rights was opened for signature in November 1950 in Rome, and the Government in this country was a Labour Government from 1945 to 1951. Will the hon. Gentleman praise the socialist Government under which the ECHR was originally conceived?

--- Later in debate ---

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Gapes, and I am grateful to all hon. Members who have contributed to what has been, on the whole, a very fine debate on human rights. I warmly congratulate the hon. Member for Edinburgh East (Tommy Sheppard) on securing it, and on his speech. He powerfully highlighted why this debate is so timely, given the worry that there will be a roll-back of rights, and that the EU27 will move ahead and enhance rights while we in this country fall behind. He also spoke well about the Prime Minister’s ambiguity on this matter, to say the least—I will return to that in a moment—and he picked out some strong examples of practical cases where the Human Rights Act and the incorporation of the ECHR into UK law has made a difference to those seeking justice in this country over the past two decades.

It was great to hear about the human rights city initiative in York, and I congratulate my hon. Friend the Member for York Central (Rachael Maskell) and all those involved in that. We must spread information about the human rights and equalities board, and all the other work going on around the country. I am also grateful to my hon. Friend the Member for Edmonton (Kate Osamor), and the report of the UN special rapporteur on extreme poverty and human rights should wake us up to the endemic problems of poverty in this country. She spoke about human rights agreements being breached, and that involves the economic and social rights of women, children, and disabled people. That is a stark reminder that although rights are critical, they are paper rights if people do not have the means to enforce them. It says everything we need to know about economic policy over the past nine years when an outgoing Lord Chief Justice can say that our justice system is “unaffordable to most”, and that should be a matter of great alarm.

The hon. Member for Henley (John Howell) spoke about his experience on the Council of Europe, and the hon. Member for Strangford (Jim Shannon) spoke movingly about religious persecution, about which we should all be vigilant. I did not agree with all the arguments made by the hon. Member for Cheltenham (Alex Chalk)—he is no longer in his place—but I certainly agreed with his support for the European convention on human rights.

We must return to first principles when discussing the European convention on human rights, which grew after world war two out of the desire and noble objective to ensure that what had happened could not happen again. As I said to the hon. Member for Henley, the convention was part of many different initiatives by the post-war Government to put that “never again” spirit into practice. I am always even-handed when dealing with the history of this initiative, so let us consider who supervised the drafting of the original ECHR. One of the people who took part in that, David Maxwell Fyfe, was a Tory MP and lawyer, and I wonder what on earth he would make of some of the modern-day Conservative party’s ambiguity towards that initiative.

What does the ECHR actually protect? I think the hon. Member for Cheltenham touched on that. It protects respect for life and is against torture and servitude. It protects liberty and security, and the right to a fair trial and not to have legislation applied retroactively. It protects the right to privacy, freedom of conscience and religion, and freedom of expression and association. It protects the right to get married if one wishes to, and provides effective remedies and protection against discrimination. Who could disagree with any of that? My challenge to those who say that we should have a British Bill of Rights is to ask which of those rights they would take out and not include in that Bill. I remember asking Ministers that question when I first came to Parliament in 2015, but answer came there none.

[John Howell]

As I said, I am a great champion of the convention, and although it was written immediately after the second world war, it contains nothing that does not apply to today.

[Nick Thomas-Symonds]

I am happy to find some agreement with the hon. Gentleman because, yes, all those things still apply today. That is precisely my point—why would anyone want to change any of those time-honoured principles? Of course we can debate how some of them are applied and so on, but those principles are as important and relevant in 2019 as they were in late 1950 when the convention was opened for signature.

The Human Rights Act 1998 is also seminal—it is important to understand precisely what the situation was before its passage. The hon. Member for Henley said that our courts started following the judgments in 1965, but of course the problem was that between the early 1950s and October 2000, when the 1998 Act came into force, if one wished to enforce any of those rights, one had to go to Strasbourg in the first place. The big change that came about in 2000 was the ability to go to our local courts to enforce those rights, which meant that it was cheaper, easier and more efficient to enforce the rights that our citizens had held for so long. That was a seminal change.

I parted company with the hon. Member for Cheltenham because, although in one sense he is right to say that those rights buttressed existing UK common law rights, there are numerous examples—the hon. Member for Edinburgh East referred to some of them, and I also point out the example of family law to the hon. Member for Henley—where the incorporation of the 1998 Act into UK law has made a significant difference.

The Labour party is very committed and passionate about the ECHR and the UK’s signatory status, and about its incorporation into our domestic law. However, there is real concern about the governing party’s position, particularly that of the Prime Minister, on the ECHR. In 2011, the Prime Minister—when she was Home Secretary—said:

“I’d personally like to see the Human Rights Act go because I think we have had some problems with it.”

Her first view appeared to be that she wanted it gone.

In April 2016, she said:

“So regardless of the EU referendum, my view is this: if we want to reform human rights laws in this country, it isn’t the EU we should leave, but the ECHR and the jurisdiction of its court ”.

That is the Conservative party’s position in its 2017 manifesto, which states:

“We will not repeal or replace the Human Rights Act while the process of Brexit is underway but we will consider our human rights legal framework when the process of leaving the EU concludes. We will remain signatories to the European Convention on Human Rights for the duration of the next parliament.”

In his response, the Minister has an opportunity to explain, because although we know what the position is for this Parliament, we do not know what it will be for the next Parliament. The hon. Member for Henley said, quite rightly, that these are time-honoured principles. Why, according to the Conservative party, are they only good enough for this Parliament? Why are they not good enough for the next Parliament, the next 10 Parliaments or the next 20 Parliaments?

I can say for certain that the Labour party will always be fundamentally committed to human rights, to the ECHR and to the Human Rights Act 1998. Can the Minister say the same for his party?