UKIP, niqabs, burqas – and bans

UKIP has made a commitment in its Manifesto to ban the public wearing of the burqa and niqab. Speaking on the BBC’s Andrew Marr Show on Sunday, UKIP’s leader, Paul Nuttall, said wearing a burqa or niqab in public was a barrier to integration and a security risk and that Muslim women who defied the ban would face a fine. Somewhat counter-intuitively, he also told Andrew Marr that “Manfred Weber, who’s the leader of the biggest group in the European Parliament, is now talking about an EU-wide ban. We can either be on the curve on this or behind the curve.” UKIP also proposes to outlaw sharia in the UK, though Nuttall told Marr that there were no proposals to ban Jewish religious courts because the Jewish population was smaller than the Muslim population.

All of which is interesting. A general ban on face-covering in public would no doubt survive a challenge at Strasbourg and probably at Luxembourg as well: see S.A.S, Achbita and Bougnaoui. There is, however, a slight snag with a UK-wide ban: criminal law is a matter devolved both to Scotland and Northern Ireland – and one cannot imagine the Scottish Parliament giving legislative consent to a burqa ban in its part of the UK while, for the moment at least, the Northern Ireland Assembly is for practical purposes inoperative.

As to a ban on sharia itself, however, it is not entirely clear what that might mean in practice. Sharia currently has no general legal validity in any of the UK jurisdictions anyway: like Jewish law or the Roman Catholic canons on marriage and nullity, in secular law it is simply “the rules of a club”. Quite apart from issues such as Article 9 ECHR, if people choose voluntarily to be bound by a particular set of religious rules, under the current law that is a choice they are entitled to make: see, for example, the Arbitration Act 1996 and the Arbitration (Scotland) Act 2010. Under the Scottish arbitration rules, for example, the basic requirements for appointing an arbitrator are these:

  • that only an individual may act as an arbitrator [Rule 3]; and
  • that an individual aged under 16 or an incapable adult within the meaning of section 1(6) of the Adults with Incapacity (Scotland) Act 2000 is ineligible to act [Rule 4].

Otherwise, whom to appoint is entirely a matter for the parties to the arbitration and, as I have observed before, if they choose to have their dispute decided under, say, Jewish law and one side defaults, the secular courts will enforce the resulting determination: see, for example, Kohn v Wagschal & Ors [2007] EWCA Civ 1022. But what the court is doing in such a case is not “enforcing religious law”: what it is doing is upholding the decision of the arbitrator. Issues of coercion are, of course, another matter – but coercion does not appear to be what UKIP has in mind. And drafting legislation that would ban one lot of religious laws but not others would require immensely skilful drafting in order to survive a challenge at Strasbourg – though, presumably, UKIP would wish to withdraw from the jurisdiction of the ECtHR in any event.

Update

When I checked the UKIP website at 16.00 on 24 April – the promised publication day – the General Election Manifesto had not yet been posted; however, UKIP had posted its “integration policy platform”. The relevant extracts are as follows:

“UKIP are the only political party committed to passing a law against th­e wearing of face cov­erings in public plac­es. Face coverings ar­e a deliberate barrie­r to integration and,­ in many contexts, a ­security risk too. Th­e time has come to ou­tlaw them. People sho­uld show their face i­n a public place. This is a policy that is already enacted in France, Belgium, Holland and Austria, and in parts of Spain, Italy, Denmark, Latvia and Lithuania in Europe alone. It is a normal, modern and reasonable response to a problem faced today.”

“Britain has one rule of law for all, so as such an explicit ban on sharia­ law and courts would be implemented. Sharia law is intended ­as a rival legal syst­em and which also undermin­es women’s rights.”

Cite this article as: Frank Cranmer, "UKIP, niqabs, burqas – and bans" in Law & Religion UK, 24 April 2017, http://www.lawandreligionuk.com/2017/04/24/ukip-niqabs-burqas-and-bans/

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