The Mail today (Saturday) offers yet another twist on the "Sharia in Britain" story that has rumbled on for most of the year, ever since Rowan Williams incautiously described it as "inevitable".
According to the report:
Islamic courts have been cleared to deal with family and divorce disputes.
Sharia tribunals will be able to decide how a Muslim couple divide their money and property and who gets the children.
The sole proviso from Jack Straw's Justice Ministry is that a formal law court must rubber-stamp the ruling.
...The decision follows nine months of controversy over the role of tribunals run according to Islamic strictures.
As usual, a bit of reading between the lines is needed to work out if anything has happened; and the answer, it turns out, is nothing. There hasn't actually been a "decision". All that has happened is that a junior minister at the Justice department, Bridget Prentice, responded to a written Parliamentary question with a statement of the law.
Michael Penning, Conservative MP for Hemel Hempstead, asked "what guidance is issued on the validity of (a) fatwas and (b) other rulings issued by religious authorities in the determination of matrimonial disputes." In answer, Prentice stated:
If, in a family dispute dealing with money or children, the parties to a judgment in a Shari'a council wish to have this recognised by English authorities, they are at liberty to draft a consent order embodying the terms of the agreement and submit it to an English court. This allows English judges to scrutinise it to ensure that it complies with English legal tenets.
The use of religious courts to deal with personal disputes is well established. Any member of a religious community has the option to use religious courts and to agree to abide by their decisions but these decisions are subject to national law and cannot be enforced through the national courts save in certain limited circumstances when the religious court acts as arbitrator within the meaning of the Arbitration Act 1996. Arbitration does not apply to family law and the only decisions which can be enforced are those relating to civil disputes.
This is essentially a description of the status quo. All that has changed, perhaps, is that there are now Sharia courts handing down these rulings, which are being submitted as part of the usual divorce proceedings and, as the Mail has it, "rubber-stamped". Previously, these informal tribunals didn't exist; now they are not only in operation but spreading. Thus the number of people whose lives might be affected runs into the hundreds of thousands, potentially even millions. As the Mail notes in passing, "the great majority of consent orders are approved."
Much of the debate on this issue has been misleading, implying as it did that the government was contemplating allowing Sharia courts to operate in this country, when in fact (as the Lord Chief Justice pointed out in July) the mechanics for them to operate already exists. In September, the Times reported that the government had "quietly sanctioned" the operation of five such courts, and that as a result Sharia had been "officially adopted". The Mail's story repeats this misinformation - though it acknowledges that "rulings by religious authorities had no legal force". The default position has always been that Sharia courts can do what they like. The real question concerns their relationship to the domestic law: primarily, whether their judgements can be enforced. On this, the government has so far declined to act, referring merely to the pre-existing machinery of the Arbitration Act.
Prentice did offer one important clarification - which is that Sharia courts cannot be used formally to arbitrate questions of family law. This may, or may not, be significant. Technically, the difference may seem a small one: in the one case, the parties submit their dispute (eg a trade disagreement between two Muslim businesses, or an internal dispute within a mosque) to the Sharia court, knowing that the decision handed down will be enforced by the civil court. In the other, the parties submit their case (regarding property or the custody of children) and that decision will be taken by the civil court to be an agreement which forms the basis of the final decision. In the one case the court is upholding the judgement of the Sharia tribunal; in the other, it is merely using it as a template for its own determination. But the end result is the same: the Sharia principles are used as the basis of the decision, with all that this implies with regard to the imbalance between men and women.
This small distinction is potentially vital, however. The Times' report in September quoted a spokesman for the Muslim Arbitration Tribunal as stating that they had "taken advantage" of the Arbitration Act to "make rulings which can be enforced by county and high courts." It went on to describe inheritance cases, child custody cases, even criminal cases involving domestic abuse. In the latter, apparently involving incidents severe enough to have been referred to the police, the men had been directed to take anger management courses, and the women had agreed to withdraw their complaints. Not surprisingly, the news caused considerable disquiet. Most worryingly, it suggested that the police were turning a blind eye to domestic violence in the name of community cohesion or cultural sensitivity. And it raised fears that women might come under undue pressure.
If Sharia tribunals were permitted to act in family and matrimonial matters in a way analagous to the Arbitration Act there would be little to prevent abuses. Civil courts are in general reluctant to interfere with the results of arbitration to which the parties have given prior agreement. Thus it would scarcely avail a woman to come before a judge and try to argue that the Sharia ruling to which she had submitted was oppressive: unless it could be shown to be manifestly unfair it would be enforced anyway. Fortunately, there seems little danger of that happening, at least officially. The House of Lords this week affirmed the conflict which exists between provisions of some Sharia family law and modern notions of human rights, something which the European Court of Human Rights has also noted. Lord Hope described the system as it pertained in Lebanon as "arbitrary" and "discriminatory"; there's no particular reason to suppose that Sharia courts operating in Britain would be any less bound by traditional assumptions. The spectre of "supplementary jurisdictions", raised by Rowan Williams back in February (and the subject of an abortive reform in Canada some years ago) would seem to have been banished.
But of course things are never that simple. Legally, there may be no problem in allowing informal arbitration arrangements if they can later be tossed aside by a judge. Informally we know that family and community pressure is not infrequently brought to bear, and that it would take an unusually strong-minded individual to reject an agreement that had been decided by what looks like an authoritative religious court. Thus the more respectable the Sharia tribunals look, the more both members of the Muslim community and outside judges are likely to take them seriously, regardless of the formal legal position. So the government's inaction isn't really satisfactory. By doing nothing, they are allowing Sharia in by the back door. Worse, they are pretending otherwise.
There now needs to be an official investigation into how the Sharia tribunals operate, and whether they are handing down decisions in matters of divorce and inheritance that are substantially different from what would be expected either from a court of law or from a secular form of mediation. If that is indeed happening, courts should be instructed to ignore Sharia-based agreements, however voluntary they appear, and impose a secular solution. Of course, it may turn out that the decisions of the Sharia "courts" are entirely reasonable. At the moment, despite the huge public debate there has been this year, we just don't know.