Good and bad recommendations from Sharia law review

Family Law|February 5th 2018

There can only ever be one system of law operating within a country. This is surely so self-evident that it needs no explanation. Anything that purports to operate a different system cannot therefore be tolerated. ‘Sharia Law’ is a different system from the law of England and Wales, and therefore has no legal force in those countries. Notwithstanding this, Sharia ‘councils’ (or ‘courts’ – see below) exist within them, apparently dispensing judgments in accordance with Sharia law.

In May 2016 then Home Secretary Theresa May, concerned in particular that some Sharia councils were discriminating against women who use their services on matters of marriage and divorce, launched an independent enquiry into the use of Sharia law in England and Wales.  The enquiry has now published its report, with the catchy title ‘The independent review into the application of Sharia law in England and Wales’.

Before I look at the review’s findings I should just explain my reference to Sharia ‘courts’ above. The term ‘Sharia courts’ is often used in the media, and I’m sure I’ve used it before myself. The report tells us, however, that this is wrong – these bodies are ‘councils’, not ‘courts’. We are told that: “It is this misrepresentation of Sharia councils as courts that leads to public misconceptions over the primacy of Sharia over domestic law and concerns of a parallel legal system.” I’m not entirely convinced about this myself – I’m sure that for all intents and purposes those who go before the councils treat them in a very similar fashion to courts, putting their case to the council and complying with the decision of the council. It could surely be argued that the word ‘council’ is no more than a euphemism.

Leaving that to one side, the review found that, whilst there was some evidence of good practice by the councils (such as reporting of family violence and child protection issues to the Police), there was also considerable evidence of bad practice. In fact, none of those who gave evidence to the review panel disputed that Sharia councils engage in practices which are discriminatory to women. Whilst this is not unexpected, it is still quite remarkable. Specific examples of bad practice included inappropriate and unnecessary questioning in regards to personal relationship matters, women being invited to make concessions to their husbands in order to secure a divorce, lengthy processes so that while divorces are very rarely refused they can be drawn out, and no clear signposting to the legal options available for civil divorce.

The review makes three recommendations to address these issues:

  1. Legislative changes, amending the Marriage Act 1949 and the Matrimonial Causes Act 1973 “to ensure that civil marriages are conducted, before or at the same time as the Islamic marriage ceremony, bringing Islamic marriage in line with Christian and Jewish marriage in the eyes of the law. Yes, this must be a good idea, ensuring that Islamic wives (some of whom do not civilly register their marriage) have the protection of the law of England and Wales.
  2. Building understanding, so that communities acknowledge women’s rights in civil law, especially in areas of marriage and divorce. This would be done by putting in place awareness campaigns, educational programmes and other similar measures to educate and inform women of their rights and responsibilities. Again, I agree with this.
  3. What I do not agree with is the third recommendation. This is the introduction of regulation of Sharia councils. The review proposes “the creation of a body by the state with a code of practice for Sharia councils to accept and implement.” Here, I am in agreement with Stephen Evans, the CEO of the National Secular Society, who said regulation risked “being a halfway house towards Sharia becoming de-facto law”. Happily, the Government agrees, the Home Office having said that it would “not be taking forward the review’s recommendation to regulate Sharia councils.” It went on: “Sharia law has no jurisdiction in the UK and we would not facilitate or endorse regulation, which could present councils as an alternative to UK laws.” Stephen Evans commented on this:

“The Home Office is quite right to reject this proposal out of hand. Regulation of so-called Sharia courts will only lend them legitimacy whilst doing nothing to ensure compatibility with anti-discrimination and human rights law. It will take us further down the road towards a parallel legal system where the rights of British citizens from minority backgrounds are fundamentally undermined.”

Quite.

You can read the full report here.

Photo by Ted and Jen via Flickr under a Creative Commons licence.

Author: Stowe Family Law

Comments(3)

  1. paul says:

    My view is that all decisions by so called Sharia Courts should be null and void, be it past or present. They should be heard in a civil court to have any relevance to UK law and all past decisions need to go through this procedure.

  2. Andrew says:

    How could you ever enforce Recommendation 1? You cannot stop people holding unrecognised Nikah ceremonies. All you can do is what the law does now: ignore them for all purposes. No immigration rights, no right on divorce, no inheritance tax rights – possibly hard on individuals but essential for the greater good. The political will is not there to criminalise anyone purporting to hold an unregistered marriage, and that’s what it would need.
    .
    The there is Islamic and other religious divorce. If people want a religious as well as a civil divorce it’s not for the secular law to say Yeah or Nay or settle the terms. The secular law is confined to the civil divorce.
    .
    This is where the Divorce (Religious Marriages) Act comes unstuck. Two-thirds of petitioners are wives. If a Jewish wife petitioner does not want a decree absolute without a get (a Jewish ecclesiastical divorce) she need not apply for one, but she presumably wanted a divorce when she presented the petition!
    .
    Which may be why there have been few if any applications under the Act.

  3. Robert Black says:

    It is a joy to read such a clear well reasoned and concise article.

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