Arbitration and Mediation Services (Equality) Bill [HL]

Lord Carlile of Berriew Excerpts

Friday 19th October 2012 Lords Chamber

[Lord Carlile of Berriew]

My Lords, along with other noble Lords who have spoken so far in the debate, I pay tribute to the noble Baroness, Lady Cox, for introducing this Bill, which I too support strongly in principle. The noble Baroness has shown extraordinary commitment to this issue and has prepared extremely well, including many other noble Lords on this issue. This debate is as well informed as any debate that occurs on a Private Member’s Bill. We can also rely on the noble Baroness to tell the House when there are new issues, which we may not have noticed, that are concerned with the safety and rights of women around the world. As it happens, on my way to your Lordships’ House this morning, I heard a horrifying report on the BBC’s “Woman’s Hour”, which described how the abhorrent practice of breast ironing of teenage girls may have been carried out in this country. I apprehend that this may well be the next issue that the noble Baroness, Lady Cox, will be discussing in your Lordships’ House. There is a great deal to do on women’s rights and nobody can be relied on more than the noble Baroness to draw our attention to these issues.

There has been a good deal of lobbying on this Bill, and I commend to your Lordships material that has been made available, certainly to me, by the Southall Black Sisters. That material is extremely detailed, very cogent and provides a guide to the Committee stage or any independent consideration of the issues in this Bill.

The abolition of legal aid in many spheres, particularly its reduction in relation to family law, places women and their children in a very difficult position. I am not a religious person myself so do not feel any sense of antipathy to any religions. If I have an antipathy to religions, it is to all of them, not some of them, and I wish to be clear that what I say is not directed at any particular religion. I also recognise that some tribunals based on religious organisations provide very valuable assistance to those faced with litigation or potential litigation, particularly in the commercial sphere. As your Lordships know, I am a member of the Bar. I would say, as a member of the Bar, that my learned friends need no additional commercial transactions to litigate over. If anyone can save money by resolving disputes by other means, that is to be encouraged. However, there is evidence that mediation through Sharia courts is not mediation in any real sense at all.

We in your Lordships’ House, and indeed in the other place, should surely be reluctant to support any form of mediation or arbitration that grants to people who do not have fully informed consent rights any less than they would be able to obtain through the ordinary courts of the land. I make an analogy here with the medical profession. If I go and see a doctor who wishes to advise me that he or she thinks I should have an operation, I wish to be informed about the nature of the operation and the risks that it may bring about. Above all, I wish the doctor to be able to say to me that I do not need the operation at all and that there is alternative non-invasive treatment that may make me feel entirely better too.

In the Sharia tribunals that I have been able to examine through the evidence that has been placed before me, there is no equivalence to what one would expect ordinarily of doctors. Women are not told that they have a right to a much higher level of provision from their husbands after divorce. There are many documented cases where that can be shown. In many instances, women are not told that in the Sharia court they may have a lesser right to custody and residence of their children and that they should go through the civil courts if they want to have their full rights under the law of the land.

It is all too easy to say that these are community issues and that it is very important to reflect the mores of the community. Of course, I agree with that. I was a Member of the other place for a rural Welsh constituency for a number of years. Culture is no less strong in rural Montgomeryshire than it is in some of our inner cities, and we must give full respect to that. However, that respect must not dilute people’s rights. I believe that if one child in this country is taken away from his or her mother because of a religious doctrine and placed with what are essentially strangers, possibly in another country, that is a fundamental flaw in our law and it should not be allowed. That is something that the noble Baroness seeks to address.

I believe that the Bill will require detailed consideration. Earlier, I mentioned the Southall Black Sisters. They and other organisations which have contacted me have expressed the desire for some amendment, and I know that the noble Baroness accepts that as a principle. For example, we might consider whether we should adopt at least some of the provisions of the Ontario Family Statute Law Amendment Act, which, I understand, provides in Ontario for a working model. There, any decision made by a third party in arbitration or other proceedings has no legal effect unless it is exclusively in accordance with the law of Ontario or of another Canadian jurisdiction. That kind of principle can be applied in the United Kingdom, particularly as we have separate jurisdictions, not in Wales but in Scotland and, to a great extent, in Northern Ireland.

I have particular concerns about Muslim arbitration tribunals—MATs, as they are known—which, as I understand it, have been in existence since 2007. Their effect is that dominant interpretations of Sharia law have effectively been given formal recognition within the law of England and Wales, even though they contradict the law of England and Wales. I have a real concern that MATs have strayed into criminal law, particularly in relation to its impact upon women. I, for one, am very reluctant to see determined in a court the proposition that a woman is obliged to have sexual intercourse with her husband on a set number of days in a month, but I have recently seen that proposition seriously set out as one that should be enforceable under Muslim law. It certainly is not any form of law that would be recognised in a rape trial, taking into account the provisions of the Sexual Offences Act 2003.

I am also concerned about the lack of rights of appeal and the lack of detailed reasons being given in writing in such tribunals. I am very concerned, too, about the use of the word “sacred”, or anything like that word, in relation to the judgment of relationships between citizens. For those and many other reasons, on which I could spend a great deal of time if we were not advised to take no more than nine minutes, I support the Bill and look forward to further discussions on it.

--- Later in debate ---

[Lord Gardiner of Kimble]

I am most grateful to the noble Baroness, Lady Deech, because that is precisely what I wish to come to. I was setting out what I call the legalistic frame of why the Government have reservations about the Bill’s provisions, but I assure the noble Baroness that there is much more to come.

Increased awareness requires changes to society, not changes to the law. This means that it is not just a job for the Government. Communities and community organisations must also give a lead in communicating so that the rights of all our citizens are understood and protected. The Government are committed to working with communities and faith groups to take this forward. Practical co-operation between faith groups is crucial to the integrated society we want to build. It is about people from different backgrounds working together for a common good and tackling shared social problems.

The Government work with many faith bodies: the Church of England, the Catholic Bishops’ Conference, the Board of Deputies of British Jews, the Network of Sikh Organisations UK and national Muslim organisations including the British Muslim Forum, Muslim Hands UK and the Mosques and Imams National Advisory Board. Perhaps I may also say, as noble Lords have referred to the Southall Black Sisters, that the Government have worked in conjunction with that organisation and others to raise the points made particularly by the noble Baroness, Lady Deech, and other noble Lords, and in formulating, among other things, an information pack to ensure that rights are better and more widely known.

Noble Lords have also highlighted their concern about those Muslim marriages which are not registered. These are not legally valid in England and Wales and do not enable parties to seek a financial settlement in the family court if the marriage breaks down. The Government are aware of the problem and the great hardship it can cause. As a result, the Government are examining ways to increase awareness of the legal consequences of religious-only marriages so as to ensure that the rights of families and children are protected. The Department for Communities and Local Government also works with local bodies such as the St Philip’s Centre in Leicester and the East London Three Faiths Forum. These bodies, along with many others, do excellent work to encourage and help link up faith-based social action, including people from different ethnic, religious and cultural backgrounds.

For all the reasons I have set out, the Government are not convinced that introducing the measures proposed in this Bill—

[Lord Carlile of Berriew]

My Lords, I am grateful to my noble friend for giving way. He has given an Olympian exegesis of the processes and laws and consultations that are available to deal with the intellectual problem that underlies the Bill of the noble Baroness, Lady Cox. However, we are concerned here with real people and real cases. How long does my noble friend expect it will take before these Olympian provisions and attentions lead to the removal of these injustices from the history of real people in the United Kingdom?

[Lord Gardiner of Kimble]

I thank my noble friend for that intervention because it gives me an opportunity to conclude by saying that the Government are fully committed to protecting the rights of all citizens, and there is legislation in place to uphold those rights. What I said earlier is that the Government are actively working with groups to ensure that there is awareness and a change of attitude. The Government believe that that is the best way forward to ensure that the points of view that have been expressed so widely around the House—