Arbitration and Mediation Services (Equality) Bill [HL]

Lord Kalms Excerpts

Friday 19th October 2012 Lords Chamber

[Lord Kalms]

My Lords, the substance of the Bill is straightforward, and it should be acceptable to all Members of this House. It is this: that the law of the land is, and must remain, paramount; no law should ever override or sit above the law of this land; and, while amendments can and will be made to our laws, the fundamental bedrock principles on which our legal system is based not only cannot but must not be open for negotiation. Among our absolutely non-negotiable principles must be the principle of equality before the law. This hard-fought-for concept of one law for all remains among the greatest achievements not only of our country but of humankind. Any court not abiding 100% by the law of the land has no more status than a kangaroo court.

Before addressing the specific legal system that poses most threat to these principles, I shall first address a misleading counterexample that is often thrown up and will doubtless emerge from this debate. As a consequence of the Arbitration Act 1996, all sorts of individuals, authorities and quasi-authorities can provide, or hold themselves up as providing, a form of legal arbitration in the UK. This includes secular, non-religious organisations as well as religious organisations. Among the latter are the Jewish courts, or Beth Din, which arbitrate between Jews who volunteer themselves up to arbitration and its auspices. However, not only are the rules of the Beth Din complementary to UK law but they are, and of course must always remain, wholly subservient to it. It is not possible, for instance, for a Jewish court to adjudicate any arbitration case in such a fashion that the judgment runs contrary to the law of the land. In addition, the Beth Din are highly regulated by central regulating bodies.

This brings me to the case of Sharia courts. It was the Labour MP Sadiq Khan who said four years ago that Sharia was utterly unsuitable for the UK because, among other reasons, there was a lack of sophistication or regulatory power in the Muslim communities of Britain. It is no insult to Muslims to remark that, unlike the Jewish community, Muslim authority in the UK, as worldwide, is highly diffuse and lacks any centralising authority. Additionally, we have already seen that Sharia courts in the UK not only seek to tread outside the remit of the Arbitration Act but already do so. For instance, the Muslim Arbitration Tribunal says by its own admission that most of its work falls outside the remit of the Arbitration Act, and is instead work that treads right into the realm of family law.

On the substance, there are two primary reasons why Sharia law provides a new type of challenge to the law of the land and why the noble Baroness, Lady Cox, is right to bring this matter to our attention. The first is the issue of competing legal frameworks. To say that there might in future be cases in which Sharia courts overstretch their remit is to be grossly unaware of the present. There are already a large number of such cases which are publicly known, widely reported and the source of significant public concern. Self-described Sharia courts have, on a number of occasions, already reached beyond what might be acceptable in a case of arbitration and over into cases which include the criminal. To my knowledge, none of these cases has ever received police attention or investigation, and this is a scandal for which the police, among other authorities, must be held responsible.

Secondly, there is the clear issue of the contravention of a fundamental of our law. Foremost among the fundamentals being violated is the principle of equality of the sexes. This House must of course be careful to ensure that religious liberty is protected, but religious liberty and legal liberty are different things. Where religious liberty runs in direct contravention of the law of the land, the religious demand must be put into its correct place. It should be totally unacceptable to this House that a situation should exist in Britain in which women are routinely awarded second-class status to men. The principle by which, for instance, the testimony of women is regarded as being worth half that of a man is, sadly, a principle with a long, historical basis in Islamic law, and is practised in jurisdictions around the world in which Sharia law is implemented.

Even in the case of arbitration, that appears to me to be totally unacceptable. How can this House permit a situation to arise—or be permitted, let alone encouraged—in which a woman is given a second-class status? How can this country in any way hold its head up as a standard-bearer of human rights and genuine equality, so long as some women in our country are born to the same rights as men, and others born in the same country are not?

Doubtless, there will be Members of this House who protest that women who choose to submit themselves to decisions made by a Sharia court for arbitration must have their wishes respected, even if those wishes do lead, as they must, to their second-class status. This demands two points in response. First, there is the issue of whether this House and this country have any confidence in their own values. If we do not have that confidence, then we should say so, but we should know that it will lead to a situation in which people in this country can break the law, ignore any concept of jurisdiction and place themselves in a legal community apart from all other people in this country. That appears to be the basis not for national cohesion but for national breakdown.

The second issue, which cannot be stressed enough, is raised by the concept of “voluntary”. It is extremely easy for Members of this House to presume what those outside this place do is “voluntary” or otherwise. But around this country, as numerous experts in this field can attest, the question of what is and is not “voluntary” is highly contestable. We may, for instance, say in this place that no woman should submit to a ruling by a Sharia court unless she has volunteered to do so. But how on earth are people here to know whether such acts are voluntary? What protection does the state provide when the police and social services, where they are not drawn from the same community as the girl in question, are too timid or fearful of anything which runs counter to the community’s professed traditions or beliefs? There are many accounts of women who have found themselves trapped in precisely those situations. Whole groups and organisations have begun to be set up to support such women. The noble Baroness, Lady Cox, has brought some women from such organisations to speak to Members of this House, as we heard the other day.

Many of these areas are distinctly cut-off, ethnic and religious enclaves. How do people in this House suppose that a young girl born in such a town, and brought up to defer to religious leaders should behave when those same religious leaders hold themselves out also as legal authorities, when such authorities are in a position not merely to give religious advice but to lay down legal judgments? There is now substantial evidence that far from volunteering themselves up to judgment by Sharia courts, many women in Britain at this time are in fact forced to do so.

Today this House has an opportunity to make a stand and draw a firm line. It should be this: that no British citizen should ever sit before a court or judge whose basic principles are in opposition to the most cherished principles of this country and its law. Whether we have the confidence to draw this line clearly will not only affect the issue of integration in this country, it will send out a signal about the kind of country we and our children would wish to live in.