Arbitration and Mediation Services (Equality) Bill [HL]

Debate between Lord Carlile of Berriew and Lord Sheikh

Friday 23rd October 2015 Lords Chamber

[Lord Sheikh (Con)]

My Lords, I say at the outset that I have met and spoken to many people across the Muslim community in recent weeks concerning the Private Member’s Bill. It should be noted that the Bill does not name any religion. However, there is widespread concern that it seeks to demonise Muslims in particular by giving an incorrect impression of our values.

First and foremost, it must be appreciated that in any dispute—civil or otherwise—one party may feel aggrieved if a decision does not go in their favour. We must talk to all the parties concerned.

There is an incorrect presumption that sharia councils arrive at decisions that are legally binding. Normally, in fact, they provide mediation services and do not consider themselves above the law. Any agreement arrived at following mediation is binding only if both parties mutually agree to it being endorsed by a court of law. If both parties prefer the matter to be considered by arbitration, this should be allowed. In such cases, the normal rules of arbitration apply and the arbitration is binding on both parties unless there has been an error in law.

There is a misconception that Muslims in this country would like sharia law to be applied generally. However, the reality is that nobody talks about sharia law as the law of the land; Muslims are clear that English law should, and does, ultimately prevail.

Some Muslims have an Islamic marriage, known as a nikah, without also having a civil wedding. Ideally, I would like to see imams performing a nikah only after a civil wedding has taken place. We should perhaps look at the possibility of amending the Marriage Act 1949 to address this issue. Having said that, if an imam receives a request to perform a nikah without a prior civil wedding, it is imperative that he emphasises to both husband and wife the drawbacks of a nikah-only marriage.

Many couples choose to cohabit without getting married and we do not pass any judgment on them—nor should we. More than 3 million couples in this country are cohabiting at the moment. When a nikah takes place, a contract is signed between the man and the woman containing the terms and financial obligations of the marriage. Under Islamic law, a man can divorce his wife by stating this. If a woman feels that her marriage has broken down and that they should divorce, she can ask the man to divorce her. If the man refuses to divorce her, she can approach the sharia council and petition for a divorce to be issued. It is therefore essential that there are sharia councils that she can approach for this to take place. I believe that all Muslims should be encouraged to use the already- drafted Muslim marriage contract, which perhaps needs simplifying.

I should emphasise that sharia councils do not obstruct or attempt to influence proceedings where issues such as domestic violence are concerned. In fact, women are advised to contact the police.

At one point the Bill refers to intestacy. It must be noted that, in the event of the death of a person who has not left a will, the estate will be administered according to the principle of the laws of intestacy in the country. Sharia law is not therefore relevant. If a person wishes to make a will distributing his wealth according to sharia law, he must be entitled to do so.

[Lord Carlile of Berriew (LD)]

I apologise for interrupting the noble Lord. As a matter of fact in sharia law, if a man wishes to obtain a divorce, does he have to ask his wife first, before he approaches the sharia council?

[Lord Sheikh]

No. Under sharia law he does not have to do that. If sharia councils make unfair decisions, these must be dealt with on a case-by-case basis. I feel that there must be a mechanism to deal with such cases and that we should put in place an appeals procedure.

--- Later in debate ---

[Lord Sheikh]

Does the noble Lord feel that it is for the community to take remedial action? This is how I feel and I would like his views on it.

[Lord Carlile of Berriew]

I hope the community will take immediate action but, in my view, the law needs to take action as well, and that is why we are here today.

The woman who came from Bala told me that she had never been out of Wales before—she had never been to England—and that she was suffering from violent and other abuse by her husband which was affecting her children and her home life. As I said, it was a busy Friday afternoon, and because the law was available we were able to go and see the busy judge—albeit, being a Friday, he was busy in his garden at the time. He took us into his dining room and there, because we were using the law which is available to every citizen, she was able to obtain an injunction, which had the violent husband out of the house in Bala by tea-time; she was able to secure the lives of her children; and in due course she was able to obtain all her other rights.

She had been brought by her Welsh solicitor—who, interestingly, was called Elfyn Llwyd, who later played a distinguished part in the life of this nation. She came to see me in my chambers only because one of her friends had said, “The chapel is not going to achieve anything for you. You must take advantage of what the law offers”. Of course, because legal aid was available—at least at that time—her rights were obtained through the offices of the state. As the noble Baroness, Lady Cox, has said, some women today experience exactly the same kind of discrimination that the Welshwoman from my experience suffered in 1975. We have to take steps to rectify that anomaly.

I am not against religious courts. I said earlier that I used to be in chambers full time in Chester. In Chester Cathedral there is a wonderful consistory court. It is one of the most beautiful little parts of a cathedral building that you can visit. Religious courts have their place but they are for religious matters. Mediation and arbitration have their place—increasingly so—and should be used whenever possible, but there must not be a pretence that there is a form of mediation that is better than the law that applies to every citizen.

We must not do anything or allow any measure or tribunal to diminish legal rights and dilute protection, particularly for those who have not always been able to obtain their rights in an equal way, whether those rights be physical, financial or moral. It is for those reasons that I support this excellent Bill.