Arbitration and Mediation Services (Equality) Bill [HL]

Lord Bishop of Manchester Excerpts

Friday 19th October 2012 Lords Chamber

[The Lord Bishop of Manchester]

My Lords, I echo the warm words of congratulation and appreciation for the characteristically heartfelt and informed speech of the noble Baroness, Lady Cox.

In February 2008, many column acres in the national media were given over to my friend and colleague, the most reverend Primate the Archbishop of Canterbury, and to his supposed views on Sharia law. I say “supposed” because a large amount of the media response to his scholarly and considered lecture on Islam and British law bore no relation to the substance of his arguments. What the episode highlighted very effectively is that for the vast majority of people, this is both a highly emotive and little understood area of our legal landscape. I claim no special expertise, so rather than test your Lordships’ patience, I will quote from the most reverend Primate’s 2008 lecture because his words have some relevance to the issues before us today.

The Archbishop said that the,

“recognition of ‘supplementary jurisdiction’ in some areas, especially family law, could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women”.

He went on to say that no supplementary jurisdiction, or minority legal order, should have,

“the power to deny access to the rights granted to other citizens or to punish its members for claiming those rights”.

I think few would wish to argue with what the most reverend Primate said, although many may regret that he was not quoted sufficiently and properly in the media.

The Bill introduced by the noble Baroness, Lady Cox, seeks to frame a legislative response to such anxieties. It may not have got it right in all regards—I will come to my contribution on that shortly—but the noble Baroness has provided us with a welcome opportunity to begin to grapple with some genuine and pressing questions of principle and legal practice in this area, such as the proposal to make it unlawful for an arbitration agreement to include provision that treated parties differently on the basis of their sex, the value of their evidence, rights in the division of estates and their property rights generally.

The functioning of religious courts in the United Kingdom requires greater discussion and research, taking particular account of women’s organisations such as Women Living Under Muslim Laws. The briefing produced for this debate by the British Academy’s policy centre reminds us that:

“There are substantial gaps in our understanding of how minority legal orders are being adapted, interpreted and applied, and we know very little about the experience of their users. There is need for research on the interrelationship between these orders and the state legal system. This argues for extreme caution in proposing legislation that can significantly impact on any of these orders”.

With the need to consider caution foremost, I offer four questions to ponder. First, do the problems that the Bill is designed to address require fresh legislation or is sufficient redress already available under existing discrimination law and the Equality Act for those who are undoubtedly poorly served by the arbitration process? Is it not already the case that the High Court will not enforce an arbitration award that has been obtained unfairly and where coercion, tacit or explicit, is involved?

Secondly, what will be the impact of the creation in Part 5 of the new criminal offence committed by arbitrators purporting to exercise a judicial function in family matters on the work of family law arbitration schemes, such as that recently set up by the Institute of Family Law Arbitrators, to which the noble Baroness referred?

Thirdly, again in that part of the Bill, is there sufficient evidence to show that, for those Sharia councils that may be claiming false jurisdiction on criminal and family cases, making such conduct a specific criminal offence is the best way of preventing it from happening? Most religious courts are not arbitration courts so the majority of practices in these courts would be unaffected by the Bill. It is true that most Sharia councils in the United Kingdom do not claim to be civil or state courts but mainly function to unbind non-legally recognised religious marriages. Claiming secular authority would contradict their nature, which is to apply religious not secular law. The real problem may not be so much false claims to civil legality but a lack of awareness of and engagement with civil legality, which itself is a symptom of a wider religious alienation from state and civil society.

Fourthly, is the trend towards non-legally recognised marriages likely to be stemmed through legislation, and specifically through the measures included in the Bill? That is a problematic area requiring attention. The few academic studies that have been carried out indicate that the majority of issues in religious courts are in relation to divorce. My concern is that the legislative solution proposed in the Bill, with its implied emphasis on Muslims and Sharia, could have the opposite, and doubtless unintended, effect of stigmatising those individuals in communities it is aiming to help. Dr Aisha Gill of Roehampton University published a paper in 2007 discussing this issue in relation to the Forced Marriage (Civil Protection) Act. She argued that it may be better all round to channel resources into education and prevention rather than to develop targeted legislation.

Reference has already been made to other religions. In my capacity as the chairman of the Council of Christians and Jews, I would like to register a concern about what I again take to be the unintended side effects of some of the Bill’s proposals. I refer especially to the Beth Din, the Jewish religious courts. One such effect is that under the Bill any Jewish couple who may seek guidance from a Beth Din about their rights and obligations relating to property or children on the break-up of a marriage will have to be turned away if those adjudicating are not to break the law. For those Orthodox Jews who wish to follow ancient Jewish law and bequeath their estate to their sons while conferring substantial dowries on their daughters, if a man died intestate his children would not be able to seek an adjudication of the Beth Din as to the disposition of the estate.

I do not for a moment doubt the sincerity of the noble Baroness, Lady Cox, in her wish not to inhibit religious freedoms through this Bill. The point has already been made in this debate that she is a well-known and respected campaigner for the cause of religious liberty at home and abroad. She is much respected, not least by the Bishops’ Bench. However, as currently drafted, the Bill appears to present anomalies which could create problems for those who are well aware of their rights, are independently advised and want to approach their faith tribunals for adjudication in a matter which they believe to be covered by the rules of their faith.