Arbitration and Mediation Services (Equality) Bill [HL]

Lord Sheikh Excerpts

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.

[Baroness Flather]

Is the noble Lord saying that there is equal treatment of women and men under sharia or is he saying that whatever sharia prescribes is correct? I am not sure; I think he is saying that whatever sharia prescribes is correct and proper. However, is there not discrimination against women?

[Lord Sheikh]

It depends on what the noble Baroness means by discrimination.

[Baroness Flather]

I see that the noble Lord has not found that out yet.

[Lord Sheikh]

That might be amusing to the noble Baroness but it is not amusing to me.

[Baroness Flather]

It is not funny to me—I am a woman.

[Lord Sheikh]

I will continue. In the same way as sharia councils cannot claim to make legally binding decisions, some religious decisions have no place in English law. In any case, mainstream courts are not able to deal with matters of religious custom. If Muslims or those from any other religious group wish to undertake mediation or even arbitration according to a set of religious principles, they should be free to do so and there should of course be no coercion. I would like to see the UK Board of Sharia Councils become a prominent, self-regulatory body of which every sharia council should be encouraged to become an accountable member. I have spoken to heads of sharia councils and I know that there is enthusiasm for this.

There are problems affecting Muslim women who are denied religious divorces and women who enter into religious marriages with no legal protection. If there are problems with some practices, it is incumbent on the Muslim community to deal with the issues and take remedial action. We must work together with the community to find the solutions. This Bill will not help us to achieve this.

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[Lord Kalms (Non-Afl)]

I thank the noble Baroness, Lady Cox, for leading us into this critical area of re-establishing British justice. She has rung the bell of a new enlightenment.

Islamic religious fundamentalism is a system that will always be in conflict with western liberal democracy. It is a system of non-negotiable theocratic edicts which runs completely against our concepts of human rights and equality. Intolerant religions always make unacceptable encroachments when they are in a minority and cause catastrophes wherever they dominate. The enlightened western democracies long ago separated religion from the making of laws and have generally enjoyed good social achievements as a result. Man-made laws and religious structures should have much in common, and both must be able to flourish in the same place. But in democratic societies, where the elected represent the views of citizens, the laws of that society must always stand supreme. It is the intention of the Bill to ensure that that condition continues in the UK. In clear and unequivocal words, the line is now drawn.

Those who desire to prioritise their faith may continue to do so, but on a set of non-negotiable principles. No excessive pressures of conformity may be applied; no British laws will be broken, bent or diluted; and no seditious acts can be preached. This marks the issue. A failure to respect those conditions breeds the creation of a wholly unacceptable pseudo-legal system.

One question that the law has been struggling with in recent years is: when is a court not a court? One answer is when pre-formed judgments make a judicial conclusion, which means that claimants have wasted their breath. Situations where the conclusion is irrelevant to the evidence are better known as kangaroo courts.

Beneath the calm surface of many of our Muslim co-citizens lies a historically accepted judicial system based on the Islamic faith. Their judgments are not our responsibility, except that we have a duty of care to be satisfied that the rulings do not breach or run contrary to any of the basic laws of this country. Our laws are supreme over every religious court and subject only to the Parliament of this country. It is a good and well-respected system. If a plaintiff or defendant is satisfied by going through sharia courts for arbitration which does not conflict with British laws then so be it, but there must be no extension or overreach, as there has been in cases reported in this country. If such an overreach occurs, then the full force of the law must be used against anti-British justice.

As to equal rights for both men and women, but particularly women, one law for all applies uncompromisingly: British law. If any woman in front of a sharia court is not fully aware of her rights under the British law, any judgments must have no binding basis. All involved should be charged with what amounts to perversion of the course of justice. It is striking that, despite numerous reports of overreach by sharia courts already, such charges have never yet been brought against a sharia court in this country.

The fundamentalist sharia courts are not about legal ignorance; they are not about misleading those who stand in judgment; it is a blatant refusal to accept that, in this country, the only law is that based entirely, 100%, on British law. In giving judgments contrary to British law, they show that they are not fit for purpose but are instead committed opponents of our system of justice. The wilful mistreatment of those who come to them for justice includes unacceptable levels of financial exploitation.

[Lord Sheikh]

Does the noble Lord appreciate that these are not sharia courts; they are sharia councils and they do not have any legal effect?

[Lord Kalms]

I heard all the explanations given by the noble Lord, Lord Sheikh, previously and I reject them completely. I think that the noble Lord stands for views which are totally incompatible with ours in this country.

These courts are a breeding ground for a wider application of sharia which, both historically and around parts of the country today, is not limited to questions of arbitration. Honour killings and other barbarities, including horrible mutilations, are their legacy as day follows night in the wider application of sharia beliefs.

It should have been unnecessary, but tragically has become necessary, to pronounce, “Join us or leave us”. We are a comfortable, mature and tolerant society. Our ground rules are generous, but our human rights rules are rigorous. It is now for the majority to reject the few so that we may all enjoy all that this country has to offer.

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[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.

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[Lord Faulks]

Let me reassure my noble friend that of course it is well understood that one of the main burdens of the debate has been the lack of awareness of the law. There is a rather strange legal maxim that every citizen is deemed to know the law, but that is often not the case in the sort of communities that we are concerned with. I accept entirely that increasing awareness is vital to avoid some of the difficulties which have been highlighted in this debate.

[Lord Sheikh]

Does my noble friend appreciate that there are certain women who obtain a decree absolute but who may not wish to remarry unless they can get a talaq? We need sharia councils so that women can approach them for a talaq.