Baroness Cox's Arbitration and Mediation Services (Equality) Bill is back in the House. I mentioned it in the past here and here. That time it did not go beyond the Second Reading so I did not do a further direct report. I also mentioned it here and wrote:
At the heart of the Bill is the need to make it legally clear that Arbitration Tribunals are not law courts, that there is only one legal system in this country and that an alternative system, which discriminates against women must not be allowed to exist, let alone flourish.This is absolutely vital for our understanding of what is going on. Arbitration Tribunals in themselves are a reasonable addition to the legal system (though if any qualified lawyer will explain that they are not I am prepared to listen and maybe accept arguments) but they must stay within the framework of English or Scottish law as, let me add, Beth Din courts do. Sharia Tribunals are steadily encroaching on family and criminal matters and claim the right to use traditional Sharia instead of English or Scottish law. Their intention is to create a legal apartheid and separate as many of the Muslim community as they can from the rest of this country and society. Then there is a question of inequality between men and women and between Muslim and non-Muslim in Sharia law, which is wholly contrary to our laws.
Since that time the Bill was reintroduced into the House at every possible opportunity but did not get very far. But the times, they are a'changing. Among the various counter-extremism proposals the Home Secretary, Theresa May mentioned Sharia courts, deemed unacceptable, and promised to tackle them. There will be a commission set up to study the subject, which sounds like an excellent idea until we ask ourselves who might sit on that commission. So far we do not know.
Generally speaking, no Private Member's Bill in either House gets anywhere unless there is a fair wind behind it from HMG. Looking at the Second Reading that took place on October 23 one can begin to see two developments: HMG is definitely more favourably inclined and there are some strong voices on all sides that are supporting the Baroness Cox.
The one voice that sounded against it was Lord Sheikh's (Col. 892). He did not do particularly well and was later told by Lord Kalms (Col. 898):
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.Here is Lord Sheikh's attempt to explain certain peculiar features of Sharia law that, he insisted, no Muslim wants to substitute for English law. It just happens to be used in Sharia courts into which those Arbitration Tribunals have developed. I may add that the noble Lord's explanation of niquah leaves something out.
All religious establishments have an agreement with the civil authorities, which involve them to carry out civil ceremonies at the same time as religious ones. The Church of England, as the national church is automatically enabled to do so. The exceptions are numerous mosques that are not registered for this and, therefore, the nikuah, the religious ceremony, has no civil validity. This is not, as Lord Sheikh implies, a choice taken by the couples in question but a simple matter of omission and ignorance especially on the part of the women, many of whom do not realize that they are not married in law and have no rights as a wife. (Yes, I know all the arguments against state involvement in marriage and am sympathetic to them. But, at present, it is involved and those who remain outside that because of the activity of their religious leaders are at an enormous disadvantage.)
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.Apart from his economic approach to the truth about nikah, the noble Lord obviously finds it a little difficult to confirm equality in Sharia law. The man can divorce his wife but a woman has to ask her husband to divorce her.
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.
Lord Sheikh did not go unchallenged, notably by Lord Carlile of Berriew, described as one of Britain's top legal experts and a man who knows a thing or two about fighting for real human rights, as well as Lady Flather, a delightful person with an outstanding collection of gorgeous saris but one whom you challenge at your peril. I feel that the blog will benefit from the entire exchange (Col. 893):
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 does not come out well.
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.
Other speakers emphasised the importance of having just one legal system for all in the country, a system in which all are treated equally and individually. Let me recommend the entire debate to people.
You can also follow the progress of the Bill and other related developments and discussions on Equal and Free.