Religion and Law roundup: 29th October

A number of posts in the past week have focussed on events surrounding the UK parliament, including the two Private Members Bills concerning the rights of cohabiting couples and the operation of some religious courts under the Arbitration Act, here and here. Both Bills passed their Second Readings and now proceed to a Committee of the whole House; but given the lack of Government support it is doubtful whether either will become law. Nevertheless, the four and a half hours’ consideration given to these issues by their Lordships raised a number of important issues on these topics, which no doubt will be the subject of further analysis.

It has been suggested that the ‘Olympics effect’ was a contributory factor in the return to growth of the UK economy, here, although this does not seem to be the case for the Diamond Jubilee. It is difficult, therefore, to suggest that any economic benefit will result from a state funeral for the remains of Richard III, if the current remains are proven to be so. Nevertheless, questions to the Rt Hon Sir Tony Baldry MP, the Second Church Commissioner, on their likely final resting place reported here received worldwide attention and within hours were reported in Toronto, Hawaii, Las Vegas, and elsewhere. In response, the University of Leicester issued a cautionary Press Release entitled “‘Don’t jump to conclusions’ – warns Head of academic team in Richard III search” which concludes with the statement

“We are not saying that we have found King Richard III. What we are saying is that the search for Richard III has entered a new phase. Our focus is shifting from the archaeological excavation to laboratory analysis. This skeleton certainly has characteristics that warrant extensive further detailed examination.”

Having been excavated under a section 25 licence, the bones are now within the “custody and possession” of the University, and were it not for the unique circumstances surrounding their exhumation, it would determine where they are to be reburied unless someone with a better claim came forward. [Update: See Frank Cranmer’s comment on post: In a written answer to a Question tabled by Dan Jarvis, Labour MP for Barnsley, Helen Grant, Parliamentary Under-Secretary of State at the Ministry of Justice confirmed the issue of the licence and the current plan for re-interment in Leicester Cathedral].

By this week, most will have forgotten about the protest in mid-October by Occupy Faith at St Paul’s Cathedral, why it was made and what it was about. In contrast, Pussy Riot’s ‘performance’ in February continues to attract the attention of the world’s media and it has been reported that 24-year-old Maria Alyokhina would serve the remainder of her sentence in Perm, Siberia, and Nadezhda Tolokonnikova, 22, had been sent to Mordovia region. They had petitioned to serve their sentences in Moscow, to be close to their children, but have been sent to remote prisons notorious for their harsh regimes.

Remaining with the theme of the severity of sentencing, in Vatican circles the 18 months given to Paolo Gabriele, the Pope’s former butler in the ‘Vatileaks’ scandal, is considered

“[i]n relation to the harm caused . . . . . [to appear] both lenient and just, a fact due to the specific nature of the legislative system from which it arises”.

A report on the conditions under which Sig. Gabriele is being detained has been published in the Guardian, here. Prisoners’ voting rights will not be uppermost in his mind, and whilst the case of Scoppola v Italy (No. 3) 126/05 [2012] ECHR 868 (22 May 2012) is of direct application to Italy, it is of limited practical relevance to the Vatican City State. However, prisoners’ voting rights is an important issue in the UK, which has until 22 November to comply with the ruling of the ECtHR in Hirst v United Kingdom (No. 2) 74025/01 [2005] ECHR 681 (6 October 2005). The recent difference of opinion between the Prime Minister and the Attorney General on complying with the court were explored in a recent post, and it is uncertain whether the UK will adopt a minimalist response to the court’s ruling or will disregard it completely.

Having received relatively little coverage in earlier posts, over the past couple of weeks Northern Ireland has been the subject of posts in relation to abortion and the opening of a Marie Stopes clinic, here and here, and more recently in relation to a High Court ruling on same-sex adoption, here. The court held that held that the eligibility criteria for adoption within the 1987 Adoption (Northern Ireland) Order 1987 No 2203 (NI 22) were unjustifiably discriminatory. Although broadly welcomed by most political parties, this is likely to be subject to appeal by Health Minister.

Finally, the Church of England’s habit of comparing its operations with those of a supermarket chain was given a further outing in a presentation by the First Estates Commissioner to the Bishops’ Council of the Diocese of Europe, here, in which he suggested that

‘Running the Church of England  . . . . . . [is] about 1/5 of the cost of Waitrose!’

The carbon footprint of the Church is often compared with that of Sainsbury’s, such as here, but whilst these figures are useful in giving an impression of the magnitude its operations, further comparisons do not bear close scrutiny.

The Bones of Richard III – Leicester, York, or Worksop?

The discovery in Leicester of bones that might prove to be those of Richard III was discussed in an earlier post.  Whilst Leicester Cathedral has been working with the Royal Household and the Richard III Society ‘to ensure that his remains are treated with dignity and respect and are reburied with the appropriate rites and ceremonies of the church’, it has also been suggested that a Roman Catholic reburial might be more appropriate, here.  The debate has now received the attention of the House of Commons where on 25th October, the Second Church Estates Commissioner, Sir Tony Baldry MP, the Second Church Estates Commissioner responded to the following questions from two MPs, here, on the likely place of reburial:

*5 John Mann (Bassetlaw): To ask the honourable Member for Banbury, representing the Church Commissioners, what assessment the Church Commissioners have made of the potential church sites available for the reburying of King Richard III. (124678)

*10 Jonathan Ashworth (Leicester South): To ask the honourable Member for Banbury, representing the Church Commissioners, what discussions the Church Commissioners have had on laying to rest the remains of King Richard III at Leicester Cathedral. (124683)

John Mann suggested that if the bones were proven to be the remains of Richard III, they should be buried in Worksop, Nottinghamshire.  Worksop is approximately in the centre of the kingdom of Richard III, half-way between York and Leicester, and is the site of a former priory.  Jon Ashworth expressed a preference for Leicester Cathedral, which is in his constituency.  The Grey friars buried the body of Richard in what was then the Greyfriars church, close to Leicester cathedral.  The Hon. Member for York Central, Hugh Bayley confirmed that Richard III is still very well regarded in York, but

‘to argue on the Floor of this place over his mortal remains is more like medieval cathedrals fighting over saints’ relics.’

Sir Tony noted that the bones have yet to be identified as Richard III, but should this prove to be the case, it would follow tradition if these were to be reinterred “in the nearest Christian church or Cathedral” and he was hoping to arrange a meeting with the Dean of Leicester and others “so see how that could happen”.

He further noted that he had sought to ascertain the burial sites of other former English monarchs. In the case of Charles, King and Martyr, although his head was still separated from his body, Sir Tony reported that these are both in St George’s Chapel, Windsor. The only monarch whose exact whereabouts are unknown is Henry I.

[According to the Museum of Reading, here, Henry I was buried in front of the High Altar in Reading Abbey, although the tomb did not survive the destruction of the Abbey after its Dissolution in 1539. During recent archaeological investigations a piece of carved stone was discovered which may be part of a twelfth century sarcophagus that might originally have formed part of Henry’s tomb].

The present status of the remains is that

‘[t]hey are at present with Leicester city council’s museums department and the University of Leicester’s archaeological department, which are carrying out tests to see whether it can be demonstrated that the remains are indeed those of Richard III. Once those tests are concluded, the nature, place and marking of any re-interment will need seriously to be considered’.

As noted in the earlier post, having been excavated under a section 25 licence, in law the University has ‘custody and possession’ of the bones, and were it not for the unique circumstances, it would decide where they are to be reburied unless someone with a better claim comes forward.

Since   our first post on Richard III “The   Bones of Richard III – Leicester, York, or Worksop?” we have followed   developments on the associated legislation.    Although comment is now closed, for those with interests in   this area the relevant articles are listed below.

Votes for prisoners and “law & religion”

The apparent difference in opinion between the Prime Minister and the Attorney General over voting rights for prisoners raises an issue of fundamental importance: not just about the particular issue of how the United Kingdom is to respond to the judgments in Hirst v United Kingdom (No. 2) 74025/01 [2005] ECHR 681 (6 October 2005) and Scoppola v Italy (No. 3) 126/05 [2012] ECHR 868 (22 May 2012) but in relation to the more general implications for the way in which UK domestic law relates to the ECHR – Article 9 included – and to the Court in Strasbourg.

On 24 October the House of Commons Justice Committee held an evidence session with Attorney General Dominic Grieve. In the absence of a Commons transcript I transcribed his remarks on the prisoner voting issue myself from the recording on Parliament TV: the relevant passage begins at 10:17:07.

In response to a comment about Hirst and whether the right to vote was a civil right or a human right he said this:

“Two points. I sometimes think that civil rights and human rights are actually in some areas rather merged … The Protocol to the ECHR that provides for the right of the population to express its view in free and fair elections is something that the United Kingdom signed up to. So whether it originates as a civil right or a human right, it is in the Convention.”

He continued:

“The second thing is that the decision by the court in the case of Hirst, finally … decided in the case of Scoppola, of which we had the decision in May of this year, places a duty on the UK as a signatory to the Council of Europe and to the European Convention to implement change to the Representation of the People Act in this area. Exactly what the UK should do is not specified; and indeed it is quite clear that there is going to be a great deal of latitude in what the UK can do to respect or implement the Scoppola judgment.

“The Scoppola judgment, in a nutshell, said that a blanket ban by statute on convicted prisoners being able to vote was … too much of a blunt instrument. While it was perfectly proper to deny some convicted prisoners the right to vote – indeed, on the basis of the Scoppola judgment [to] deny some … non-custodial sentence prisoners the right to vote or indeed [some] prisoners after release the right to vote – that despite that, the present blanket ban is in breach of the Protocol to the Convention.

“Now: the United Kingdom Government is adherent to the Convention; and the Convention is one of our international legal obligations. And successive Governments – including this one – have always put a great emphasis on the observance of our international legal obligations. We live in a world where international law matters increasingly and the United Kingdom has always been seen as a role-model in areas of international law as to how we go about our business and the fact that we do observe international obligations that are imposed on us. It is, of course, entirely a matter for Parliament ultimately – [for] the Government to make proposals but for Parliament – to determine what it wants to do. Parliament is sovereign in this area. Nobody can impose a solution on Parliament; but, as I say, the accepted practice is that the United Kingdom observes its international obligations. And that is something that is spelt out in a number of places, including the Ministerial Code.

“I’m not in any position to speculate what the outcome would be if the United Kingdom Government and Parliament decided not to respond to the judgment. What would happen in practice is a matter of speculation [in relation to non-compliance by states parties]. What may or may not have happened in the past is one thing. It is at least technically possible that we would certainly be in breach. There’s an issue, I think, which has been canvassed frequently … that there would be damages claims stacking up against the United Kingdom Government in respect of individual prisoners who would claim that their right to vote had been denied them; and therefore that would be costly to the United Kingdom Government unless it chose not to pay those – in which case there would be a further breach of its international obligations.

“And as to what the end-game would be, whether it would mean that the United Kingdom decided to leave the Council of Europe or [would] be expelled from the Council of Europe, I don’t think I’d wish to hazard a guess; but it is at least technically possible that a country which is in breach of its obligations can be removed – although the only occasion that it ever happened is that the Greek Government, I seem to recall, jumped before it was pushed in the 1960s after the Putsch by the generals.

“But if I may say so, I’m not sure that that is, perhaps, the issue. The issue, it seems to me, is whether the United Kingdom wishes to be in breach of its international obligations and what that does reputationally to the United Kingdom. And as I stressed, ultimately this is not a matter where there is not Parliamentary sovereignty: there certainly is – Parliament gives and Parliament can take away. Governments can leave the Council of Europe if they choose to do so. But all I’m saying is that it’s quite clear – and I think accepted by the Government – that insofar as the Scoppola judgment is concerned, it imposes an international legal obligation.”

Later, in reply to a suggestion by Jeremy Corbyn that non-compliance would be damaging to the United Kingdom’s international reputation as an upholder of human rights, he said this:

“I hope I’ve made it clear that the United Kingdom has an enviable reputation in relation to human rights standards and adherence. One of the things I’ve discovered in my time as Attorney is that – I’ve quite a lot of foreign travel, including outside of Europe and most of it’s been connected with what I call the ‘rule of law’ agenda: trying to persuade countries which have poor rule of law records to put in place the necessary structures that human rights are respected, that the police don’t beat people up in prison cells, in police cells and that standards are raised. We’re at the forefront of that. I think if I were trying to identify an area of ‘soft power’ – benevolent soft power that the United Kingdom has to offer – I think it’s one of our great prizes. And inevitably, if we were to be in default of a judgment of the European Court of Human Rights, whilst clearly some people could put forward logical arguments as to why we should be, equally I have absolutely no doubt that it would be seen by other countries as a move away from our strict adherence to human rights law.” [my emphasis]

Not long afterwards, in an exchange during Prime Minister’s Questions in the House, David Cameron said this:

“The House of Commons has voted against prisoners having the vote. I do not want prisoners to have the vote, and they should not get the vote – I am very clear about that. If it helps to have another vote in Parliament on another resolution to make it absolutely clear and help put the legal position beyond doubt, I am happy to do that. But no one should be in any doubt: prisoners are not getting the vote under this Government” [Commons Hansard 24 Oct 2012 c 923].

Comment:

Implications for compliance with Article 9

Apart from the obvious thought – “Do the PM and the Attorney ever talk to each other?” – the other question that might have occurred to anyone who has read this far is, “What has any of this to do with ‘law and religion’?”. To which my answer would be that human rights and adherence to the terms of the ECHR are indivisible. Once governments begin to pick and choose which rights to respect there is no telling which Article will become the object of their derision. (For a thoughtful analysis from a different perspective, see More shenanigans on prisoner votes on UKHRB.)

A possible (fictitious) scenario

Following is an extremely unlikely but not completely outlandish hypothetical scenario. A future UK Government bows to pressure from the Farm Animal Welfare Council and the British Veterinary Association and decides to ban the slaughter of animals without pre-stunning. Representatives of the Jewish and Islamic communities take the matter to Strasbourg; and the ECtHR decides that Cha’are Shalom ve Tsedek v France 27417/95 [2000] ECHR 351 (27 June 2000) can be distinguished on the facts (in Cha’are Shalom ve Tsedek the Court upheld what amounted to the Government’s refusal to license ultra-Orthodox glatt kosher slaughterers but stated, obiter, that ordinary ritual slaughter was protected by Article 9).

As a result, the UK Government loses – but Parliament refuses to repeal the ban. So what next? Does every observant Muslim and Jew then make a claim? And does HMG then default?

But can the UK simply walk away?

Further, even though the Attorney observes that “Governments can leave the Council of Europe if they choose to do so”, is departure a realistic option? Would withdrawing from the Council and the ECHR be in conflict with our EU obligations under the Treaty of Lisbon? Article 6(2) and (3) of that Treaty provides that the EU “shall accede” to the ECHR and that

“[f]undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law”.

Which presumably means either that membership of the Council of Europe is a necessary condition of membership of the EU or that members of the EU are bound by the terms of the ECHR whether or not they are members of the Council of Europe. In which case, withdrawing from the Council is either suicidal or pointless – except for those who would like to see the UK withdraw from the EU in any event.

And finally

The Attorney made an extremely telling point when he talked about the “rule of law” agenda and “soft power”. In short, what price the UK’s international reputation as role-model for human rights and the rule of law if we fail to comply with a clear ruling of the ECtHR?

Marriage, Civil Partnership and Cohabitation

Prior to the debate on the Arbitration and Mediation Services (Equality) Bill reported here, the House of Lords gave a second reading to another Private Member’s Bill, the Inheritance (Cohabitants) Bill of Lord Lester of Herne Hill.  The object of this Bill is to ‘to make provision about the property of deceased persons who are survived by a cohabitant’, and whilst the substance of the proposed provision is beyond the scope of this web log, the issues leading to its introduction and the related considerations concerning long-term relationships are pertinent to the current debate surrounding equal civil marriage, and beyond.

In comparison to married couples and those within civil partnerships, cohabitants have fewer rights and responsibilities, reviewed here in a recent House of Commons Library Standard Note.  However, their numbers are significant.  The 41st edition of the ONS publication Social Trends (14 April 2011) indicates that together with lone parent families, they accounted for 7.5 million people, i.e. ~15 per cent of all those living in families in the UK.  For comparison, in the same year there were ~45,000 civil partnership families and ~ 51,000 same sex cohabiting families.

In 2007, the Law Commission published Cohabitation: the financial consequences of relationship breakdown which recommended the introduction of a new scheme of financial remedies for cohabitants on separation, although it did not consider that cohabitants should be given the same rights as married couples and civil partners in the event of their separation.  The report has been considered by both the previous and the present government, here and here, and has been the subject of Lord Lester’s earlier private Member’s bill in December 2008, here, and in March 2009 by Mary Creagh under the Ten Minute Rule, here.

Although the current Bill focused on issues of inheritance, it was suggested in the debate that the broader concerns of cohabitation might be considered in a further Bill ‘to give effect to the Law Commission’s proposals on that wider issue of cohabitation rights’ as part of the wider debate on the institution of marriage, proposals for ‘equal civil marriage’ and the position of civil partnership.

Nevertheless, Government support during the present parliamentary term seems unlikely.

Comment

Marriage, civil partnership and cohabitation 

In terms of the tranche of law concerning couples in long-term relationships, that associated with cohabitation is in need of reform on account of: the acknowledged difficulties with the existing provisions; and the significant numbers of couples involved.  Nevertheless, whilst cohabitation is becoming increasingly acceptable, a recent YouGov Poll suggested that public opinion favours legislation which promotes marriage in preference to other kinds of family structure, and giving cohabitants similar legal rights as the married would undermine marriage and make people less likely to wed, here.

The importance of the institution of marriage was highlighted by a number of speakers in the debate, and the Bishop of Manchester outlined the dilemma facing the Church,

‘Our starting point was, and is, that marriage is central to the stability and health of human society, in particular, the faithful, committed, loving, permanent and legally sanctioned relationship between a man and a woman which marriage affords and which continues to provide the best context for the raising of children … Nevertheless, as the General Synod affirmed in 2004, the Church of England recognises that there are some issues of hardship and vulnerability for people whose relationships are not based on marriage and that they need to be addressed by the creation of new legal rights.’ [col. 1665].

Whilst welcoming the guiding principles behind the Bill, the Bishop questioned addressing intestacy in isolation, and also the rationale of introducing a legislative construct whereby

‘[t]he partners would in effect acquire a de facto legal status simply on the basis of things that they had done – living together, becoming parents – but without having made any particular formal commitment to one another and without voluntarily taking a particular status upon themselves.’ [col. 1667].

The potential complexity of granting legal rights to cohabitants in relation to inheritance was highlighted by Baroness Deech who said:

‘if these proposals [within the Inheritance (Cohabitants) Bill] were to go ahead, we would have a society containing separate regimes for heterosexual and, maybe in future, same-sex marriage, civil partnerships and cohabitation, and family members living together, all with different rights and duties.

We need a complete, unified appraisal of all such relationships and no more piecemeal tinkering with legal rights deriving from different forms of sexual relationships that attract attention at any time.’ [col.1661]

Whilst such an unified approach appears to be more logical, the rationale for this separate Bill on inestacy was the Law Commission’s recognition of the controversial issues associated with cohabitation

In his summing up, Lord McNally, Minister of State, Ministry of Justice, noted the Law Commission’s observation that ‘this issue has the potential to be divisive and contentious’. An example of the implications of the current Bill as drafted would

‘[put] certain cohabitants on the same footing as spouses and civil partners in relation to intestacy would significantly shift the boundaries of what the average person is deemed to be likely to want to happen with his or her estate,’ [col 1678]

and

‘equate the position of some [co]habitants with that of spouse and civil partners under the intestacy rules and improve their position under the 1975 Act. Certain cohabitants would therefore be promoted above blood relations on intestacy.’ [col 1679].

Lord McNally’s instinctive position was to want to support their proposals, he felt that they should be addressed as ‘part of a more comprehensive and considered approach to these issues.’  Although the Government did not intend to oppose the Second Reading, he re-iterated its position announced in September 2011 that,

‘[it] did not intend to take forward the Law Commission recommendations for reform of cohabitation laws in this parliamentary term. Proceeding with the present Bill would separate out the law relating to the ending of a cohabiting relationship during life and on death. This is not to suggest that the law in these situations is perfectly aligned at present, but it will be considerably less so if this Bill is enacted. I am not certain that this will be a good development.’ [col.1679].

Are the current intestacy rules insufficiently generous?

There is a further subsidiary issue that needs to be addressed as part of any overall package: the present rules of intestacy themselves. In December 2011 the research conducted as a background to the Law Commission’s report on Intestacy and Family Provision Claims on Death concluded that the current law of intestacy and family provision claims on death was “outdated, confusing or places unnecessary obstacles in the way of those with a valid claim to share in a deceased person’s assets.” The Commission itself also noted that the persistence of the myth that English law recognises the relationship of “common-law spouse”.

The Commission published a draft Inheritance and Trustees’ Powers Bill that would have made an intestate’s spouse or civil partner the sole beneficiary unless there were children or other descendants. In addition, if there were children, the spouse or civil partner would – as now – receive a statutory legacy from the estate plus half of the residue: but that share of the residue would be inherited outright instead of as a life interest held in trust. The Commission also wanted the Inheritance (Provision for Family and Dependants) Act 1975 amended to allow a family provision claim to be brought by someone claiming to be a dependant of the deceased even if the deceased did not assume responsibility for that person’s maintenance.

One argument advanced against further relaxation has tended to be that people should be encouraged to make wills and that if the rules on intestacy are relaxed to any great extent they will have no incentive to do so. However, the Law Commission estimates that in 2010 about half of those who died in England and Wales were intestate: see Intestacy and Family Provision Claims on Death: impact assessment (para 27). Is there any reason to suppose that very many of them read the rules on intestacy and made a conscious decision not to make a will? One’s suspicion is that the more likely explanation for intestacy is a reluctance to contemplate one’s own death.

Sharia law, the Arbitration Act 1996 and the Arbitration and Mediation Services (Equality) Bill

On 19 October the House of Lords gave a second reading to the Arbitration and Mediation Services (Equality) Bill, a private Peer’s bill introduced by Baroness Cox – see HL Deb 19 Oct 2012 c 1682 ff. Though the term does not appear anywhere in the text of the Bill, it is clear that her primary concern is what she perceives to be unequal treatment of women by tribunals operating under sharia.

Baroness Cox said that her Bill sought to address two fundamental concerns:

“the development of a parallel quasi-legal system based on inherently discriminatory principles [which] may involve proceedings operating under the terms of the Arbitration Act or it may involve less formal community forums for resolving disputes”; and

“the … related concern that many women suffer from gender discrimination in these contexts”.

She conceded that some sharia tribunals operated in ways that were unproblematic but suggested that others gave cause for concern. She was particularly concerned at the disparity between the ṭalāq divorce for husbands and the khula divorce for wives.

She explained that her Bill

“… does not interfere in the internal theological affairs of religious groups. If people wish to submit voluntarily to the rulings of any body, religious or otherwise, even if that means surrendering their rights under English law, they are free to do so. The Bill does not force them to give up religious law or abnegate conscience in favour of the law of the land. The Bill also recognises existing legally sanctioned forums for arbitration, including Muslim arbitration tribunals or MATs and various forms of mediation available in religious or secular contexts. The Bill will not affect the continuation of these provisions or their growth and development in accordance with the law of the land”.

Her specific concerns about the operation of the Arbitration Act 1996 were primarily that some tribunals were

“… practising sex discrimination. For example, a tribunal in Nuneaton adjudicated on an inheritance dispute between three sisters and two brothers and, in accordance with sharia law principles, the men were given double the inheritance of the women”.

She alleged that some arbitration tribunals were acting outside their legal remit, including criminal matters. Her Bill would make it a criminal offence to claim legal jurisdiction falsely; and any person purporting to arbitrate in any matter within the jurisdiction of the criminal courts would be liable on conviction to a maximum penalty of five years in prison.  She also voiced her suspicion that “many women wrongly that think these informal tribunals are real courts and submit to their rulings accordingly” and appeared to be concerned about the lack of an appeal mechanism in sharia tribunals and the lack of control over the appointment of judges.

Though she accepted that the proposals in the Bill were not without flaw and required some amendment, overall they were intended:

  • where a negotiated agreement is formalised in a consent order, to make it easier to set aside that order if it was reached under duress, or where a party’s consent was not genuinely informed;
  • to make it easier for women to apply to the courts to have discriminatory rulings overturned on the grounds of gender discrimination;
  • to strengthen the power of the police and courts to protect victims of domestic violence from coercion and intimidation; and
  • to enhance the public sector equality duty by encouraging police, social workers and healthcare workers interacting with Muslim women to explain to them the advantages of civil marriage in addition to the Islamic nikah.

In a typically-thoughtful speech, Lord Carlile of Berriew expressed considerable reservations about

“… any form of mediation or arbitration that grants to people who do not have fully informed consent rights any less than they would be able to obtain through the ordinary courts of the land. In the sharia tribunals that I have been able to examine through the evidence that has been placed before me …  [w]omen are not told that they have a right to a much higher level of provision from their husbands after divorce … In many instances, women are not told that in the sharia court they may have a lesser right to custody and residence of their children and that they should go the civil courts if they want to have their full rights under the law of the land”.

He suggested that the House might usefully consider whether England and Wales should adopt at least some of the provisions of the Ontario Family Statute Law Amendment Act 2009 under which, he surmised, any decision made by a third party in arbitration or other proceedings had no legal effect unless exclusively in accordance with the law of Ontario or of another Canadian jurisdiction. He had particular concerns that Muslim arbitration tribunals had strayed into criminal law, particularly in relation to its impact upon women. He was also concerned about the lack of rights of appeal and the lack of detailed reasons being given in writing.

The Bishop of Manchester suggested that the functioning of religious courts in the United Kingdom required greater discussion and research. He noted that the briefing produced for the debate by the British Academy’s Policy Centre stated that:

“There are substantial gaps in our understanding of how minority legal orders are being adapted, interpreted and applied, and we know very little about the experience of their users. There is need for research on the interrelationship between these orders and the state legal system. This argues for extreme caution in proposing legislation that can significantly impact on any of these orders”.

He suggested four questions:

  • did the problems that the Bill was designed to address require fresh legislation or was sufficient redress already available under existing discrimination law and the Equality Act, given that the High Court would not enforce an arbitration award that had been obtained unfairly and where coercion, tacit or explicit, was involved?
  • what would be the impact of the creation in Part 5 of the new criminal offence committed by arbitrators purporting to exercise a judicial function in family matters on the work of family law arbitration schemes?
  • was there sufficient evidence to show that, for those sharia councils that might be claiming false jurisdiction on criminal and family cases, making such conduct a specific criminal offence was the best way of preventing it from happening?
  • was the trend towards non-legally-recognised marriages likely to be stemmed through legislation, and specifically through the measures included in the Bill?

On the last point, he was concerned that the legislative solution proposed in the Bill could have the opposite and unintended effect of stigmatising those individuals whom it was aiming to help.

As Chairman of the Council of Christians and Jews he was also concerned about the unintended side effects of some of the Bill’s proposals on Jewish religious courts. One effect would be that under the Bill’s proposals a Jewish couple seeking guidance from a beth din about their rights and obligations relating to property or children on the break-up of a marriage would have to be turned away if those adjudicating it were not to break the law. In the case of Orthodox Jews who wished to follow Jewish law and bequeath their estate to their sons while conferring substantial dowries on their daughters, where a man died intestate his children would not be able to seek an adjudication from a beth din as to the disposition of the estate.

In conclusion, the Bill as drafted appeared to present

“… anomalies which could create problems for those who are well aware of their rights, are independently advised and want to approach their faith tribunals for adjudication in a matter which they believe to be covered by the rules of their faith”.

Lord Williamson of Horton pointed out that Clause 1(2) would close a possible loophole in the Equality Act 2010 by making it clear that sex discrimination law applied to arbitration tribunal proceedings, so that tribunals which operate legitimately under the Arbitration Act 1996 could not use discriminatory sharia rules such as a woman’s testimony being worth half that of a man.

Lord Kalms noted that, as a consequence of the Arbitration Act 1996, all sorts of individuals and authorities could offer legal arbitration, including batei din. However, not only were their rules complementary to UK law but they were wholly subservient to it. It was not possible, for instance, for a Jewish court to adjudicate an arbitration case in such a fashion that its judgment ran contrary to secular law. Sharia courts, in his view, were not so highly regulated. Moreover, the Muslim Arbitration Tribunal had admitted that most of its work fell outside the remit of the Arbitration Act and was instead concerned with family law. He saw a problem of competing legal frameworks and what he alleged to be the contravention of a fundamental of secular law: the equality of the sexes.

Answering the debate, Lord Gardiner of Kimble said that the Government had reservations about the proposals in the Bill, some of which had already been voiced by the Bishop of Manchester. It had been suggested that religious law principles applied by arbitration tribunals and religious councils might undermine the principle of equal rights under the law; however, religious principles could be applied in the secular courts only if both sides had freely agreed to be bound by them. Regardless of religious belief, every citizen was equal before the law.

The Government was also unenthusiastic about a bar on arbitration in family disputes because it was keen to promote non-court dispute resolution services for family and other disputes. This was typically through mediation; but couples had the option to use arbitration and to apply religious considerations. The Beth Din and the Muslim Arbitration Tribunal provided alternative dispute resolution in accordance with halacha or sharia principles because the Arbitration Act 1996 allowed parties to agree that the arbitrator could use any system of law or rules other than national laws. Both parties had to agree freely to arbitration and to the use of religious principles – and even where religious law had been employed, the resulting decisions were reviewable by the civil courts on a number of grounds, including whether or not the agreement had been freely concluded. The decisions of religious tribunals that were not governed by the provisions of the Arbitration Act, such as sharia councils and Roman Catholic marriage tribunals, were not binding in secular law.

Many of the issues raised by Lady Cox were addressed in existing legislation: for example, the Equality Act prohibited discrimination on grounds of sex and s 51 Criminal Justice and Public Order Act 1994 prohibited intimidation of witnesses.  The common law already restricted what could be arbitrated and the Government had no plans to change that. As to the issue of consent, the courts were already under a duty to question any order that appeared unfair and could refuse to make the order.

In short, the Government regarded the provisions of the Bill as unnecessary.

Comment: To say that this is a difficult area is a major understatement. Against the need for perceived fairness there has to be balanced the right of parties under the Arbitration Act 1996 to agree on an arbitrator and to agree on which laws or rules should apply to the arbitration. And if, for example, two Orthodox Jews in disagreement prefer to have their dispute arbitrated under Jewish rather than English law, what wider public interest is there in preventing them from doing so?

The problem which underlies much of the debate is the extent to which, in matters such as divorce, consent to arbitration by a religious court is genuine on the part of both parties. There is also an underlying concern about the prevalence of nikah marriages that are not subsequently registered under secular law. But would Baroness Cox’s Bill make any practical difference to the incidence of non-civil marriage? There certainly remains a lingering doubt about the way sharia might be applied in matters of family law that is not easily dispelled; but I suspect that if a remedy is needed, that remedy is education rather than legislation.

The British Academy briefing referred to above is based on a much longer report by Professor Maleiha Malik: Minority legal orders in the UK: Minorities, pluralism and the law. The principal message of Professor Malik’s analysis is the sheer complexity of the issue; and my own suspicion is that, if enacted, the Bill would very probably create as many problems as it cured – if, indeed, it managed to cure any problems at all. However, the Bill is at the beginning of its proceedings in the first House (which means that if it is passed by the Lords it will have to go through the Commons before becoming law) and second readings in the Lords are in any case agreed to as a matter of formality. If the lack of enthusiasm of Lord Gardiner is any guide the Bill is going precisely nowhere.

Cite this article as: Frank Cranmer, "Sharia law, the Arbitration Act 1996 and the Arbitration and Mediation Services (Equality) Bill" in Law & Religion UK, 24 October 2012, http://www.lawandreligionuk.com/2012/10/24/sharia-law-the-arbitration-act-1996-and-the-arbitration-and-mediation-services-equality-bill/

High Court ruling on same-sex adoption in Northern Ireland

On 18 October, the High Court allowed the application for Judicial Review brought by the Northern Ireland Human Rights Commission, (NIHRC), [2012] NIQB 77 and held that the eligibility criteria for adoption within Articles 14 and 15 of the Adoption (Northern Ireland) Order 1987 No 2203 (NI 22) were unjustifiably discriminatory, in breach of Articles 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms.

The court also held that the guidance provided by the Department of Health, as it currently stands, clearly does not appropriately reflect the true state of the law, and in particular the judgment in Re: P [2008] UKHL 38. This judgement was definitive in deciding that the difference in treatment created by Article 14 of the 1987 Order was unjustifiably discriminatory and represented a breach of Article 8 in conjunction with Article 14 ECHR.  The court noted that in failing to clarify the true legal position of unmarried couples who wish to adopt jointly, the Department have perpetuated the breaches identified in Re P. 

The NIHRC has statutory responsibility for reviewing the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights.  Although its locus standi was challenged, the court held that it could act on two counts: on affidavit evidence, C was a victim of an illegal act; and under s71(2b)(c) of the Justice and Security (Northern Ireland) Act 2007, the Commission had a duty to pre-empt and prevent potential human rights violations such as this.

Case Summary

The House of Lords judgment in Re P on 18 June 2008 reversed the ruling of the Court of Appeal in Northern Ireland and granted a declaration that it is unlawful for the Family Division of the High Court in Northern Ireland to reject the applicants for adoption as prospective adoptive parents on the ground only that they are not married.  The NIHRC then entered into correspondence with the Minister of Health in 2008, essentially requesting that the Minister update the Department’s plans in line with Re P.  However, no answer was received and in April, the proposed Adoption and Children Bill (which it was assumed would deal with the issues raised in Re P) was postponed indefinitely.

Subsequent correspondence with the OFM/DFM (Office of the First Minister and Deputy First Minister) in August 2010 drew the response that his role was limited to highlighting issues, but not to challenge executive decisions.  Having expended all possible options, and in view of the perceived on-going human rights violations, the Commission considered that it had no option but to challenge the prevailing status quo through the instant proceedings.

During the institution of these proceedings, NIHRC was contacted by C who informed them [at para. 15] of the fact that if she and her partner entered a civil partnership,

‘not only could [she and her] partner  . . . not even apply to be considered for adoption as a couple, but that should [they] enter a Civil Partnership, neither of [them] can ever adopt, either as a couple or as individuals’.

The court summed up the position, stating [at para.68]  that despite the House of Lords ruling in Re P that the status of being unmarried should not act as a bar to applying to adopt, under the current law in Northern Ireland, the only circumstances in which one can adopt are:

a.      If you are a married couple, you can only adopt as a couple;

b.     If you are an unmarried person, you can only adopt as an individual;

c.      Therefore, if you are an unmarried person, you are not eligible to adopt as a couple. This is the state of affairs which was addressed in Re P and ruled unlawful and it is contended here that the ruling in Re P has not been effectively implemented with the effect that there remains an impermissible bar to applying to adopt if you are an unmarried couple.

d.     If you are an unmarried person who has entered a Civil Partnership, you may not apply to adopt either as an individual or as a couple.

The court stated [at para. 79] that:

‘couples who have entered a civil partnership who enjoy all these legal rights should be even more capable of assuaging these concerns than other unmarried couples. In respect of gay and lesbian couples either in or hoping to enter a civil partnership, such as C in these proceedings, their Art 8 rights are also affected in relation to the effect of the eligibility criteria on their right to choose to enter into a civil partnership…

The present legislation essentially entails that a gay or lesbian person must choose between being eligible to adopt, or affirming their relationship in public via a civil partnership ceremony. In pursuance of public expression of their commitment to one another they lose the legal opportunity that they had previously enjoyed. Thus Article 8/Article 14 are clearly engaged on all of the grounds above.’

The court could find no rational basis [at para.80] for the respondent’s contention that the current eligibility criteria serve the best interests of the child, stating [at para.81] that

‘It cannot be in the best interests of a child to deny that child of the full benefits of having two fully legal adoptive parents.’

Comment

It is reported, here, that the court’s decision was broadly welcomed by most of the political parties, but that the Health Minister has announced his intention ‘to urgently appeal’ the judgement, stating

‘This judicial review has already delayed plans to introduce a new Adoption and Children Bill in the Assembly and I fear that this will lead to further delay’.

Religious slaughter and food labelling

The slaughter of animals for food is an emotive subject, made more so when issues of religious slaughter are involved.  The publication by Defra of the consultation ‘Welfare of Animals at the Time of Killing’ on 13 September was followed by a number of groups including the National Secular Society expressing particular concern regarding ‘religious slaughter’, here.  The RSPCA is ‘opposed to the slaughter of any food animal without first rendering it insensible to pain and distress until death supervenes’, here, but to date has not formulates its position.  The British Veterinary Association has similar concerns, which it outlined in a letter to the Sunday Times on 8 October, here, and is currently seeking its member’s opinions on the consultation before submitting its response.

In the briefing note issued by the National Secular Society, here, the labelling of religiously slaughtered meat is identified as a key issue, which, it notes, is being considered by the collation government ‘in a welfare context’.  No doubt other organizations will support this move by the NSS, but is the present consultation the right vehicle through which to raise these concerns?

Comment

The labelling of religiously slaughtered meat became an issue in 2010 as a result of two factors: newspaper reports that halal meat was being served in the House of Commons dining rooms, here; and the EU proposal on the labelling of food in respect of nutritional information, here.  [This and the associated lobbying is discussed in my column in Environmental Law and Management, (2010) 22 ELM 328].

With regard to UK Parliament, in response to a request from Philip Hollobone, MP for Kettering, regarding ‘some food labelling regulations to mark halal and kosher products as such’, here, James Paice, Minister of State, Department for Environment, Food and Rural Affairs, stated:

‘As my hon. Friend is aware and as the House fully understands, this is a highly emotive issue, and I understand the demand for labelling.  As he rightly says, the Government would like all animals to be properly stunned before they are bled to slaughter. There is a discussion at European level about food information regulations, but we do not believe that that is the right vehicle. Next year, we will consult on implementation of the European animal welfare regulations, and the labelling issue will certainly be examined as part of that.  I recognise the strength of feeling to which my hon. Friend refers’, [emphasis added].

Or, certainly not, as it now appears from the consultation document which does not contain any questions relating to labelling, although the House of Commons Library Standard Note SN/SC/1314, ‘Religious Slaughter’, as last updated on 11 June 2012, does acknowledge that

‘[t]he Coalition Government has no intention of making Halal or Shechita slaughter illegal, but it is considering welfare labelling of meat’, [emphasis added].

But when?  The earlier European proposal concerned nutritional information and was probably not the correct vehicle, but neither is the present Defra consultation.  Since the latter does not address the labelling issue, it is unlikely that any responses relating to this will be a major consideration in the subsequent government reponse, although strongly expressed views are likely to be noted. For the groups concerned, this is clearly an issue of where best to deploy their lobbying resources, but what is certain is that if labelling becomes a ‘stand-alone’ consultation, it will be subject to lobbying from a number of opposing organizations.  What is uncertain, however, is the degree of general concern in this issue.  When Defra consulted in 2009 on the underpinning EU Regulation, here, this generated only 36 responses, three of which supported compulsory labelling of meat from animals that have not been stunned.

The current consultation closes on 24 October.