A Fear of Sharia: why the Independent Report is a wasted opportunity

In a guest post, Russell Sandberg, Head of Law and Reader in the School of Law and Politics at Cardiff, is fairly unimpressed with the report of the Independent Review into the Application of Sharia Law in England and Wales

Introduction

Today, 7 February 2018, is ten years to the day since Rowan Williams gave his lecture that illustrated the fear and heat surrounding the issue of sharia and how little we know about the operation of sharia law in the UK. Academic work in the last decade and some earlier work have meant that we now know a great deal about some sharia councils operate (or at least the representations they give to researchers). And there has been a great deal of literature by lawyers, political scientists, theologians and others into the range of issues that such institutions raise.

In particular, a literature has developed on the ‘minorities within minorities’ issue: the need to protect the rights of those within the communities, especially to ensure that there is no discrimination on grounds of gender.

Yet there is still much that we do not know. We do not know the number of bodies that designate themselves as religious courts, tribunals or councils, let alone the number of informal practices within faith communities where decisions on disputes are made and enforced. We do not know the scale of the discrimination and disadvantage suffered by the ‘minorities within minorities’ debate. As Theresa May put it in March 2015 when she was Home Secretary, “we know we have a problem, but we do not yet know the full extent of the problem”.

The Independent Review into the Application of Sharia Law in England and Wales

The need for an Independent Review into the Application of Sharia Law in England and Wales was therefore clear. However, it is unfortunate that their Review published last week does little if nothing to advance matters. It presents presenting a number of deeply flawed recommendations to a problem while failing to identify the extent of the problem. Of course, this is a difficult and controversial topic; but the simplistic and ill-informed recommendations proposed in the Review are likely to confuse if not exacerbate the issue.

The terms of reference for the Review was to focus ‘on whether sharia law is being misused or applied in a way that is incompatible with the domestic law in England and Wales, and in particular whether there were discriminatory practices against women who use sharia councils’ (p3). This is a large and somewhat loaded question. But it is one that the Review simply fails to answer.

The Review does provide a list of anecdotal good and bad practices and an assertion that no one who gave evidence ‘disputed that sharia councils engage in practices which are discriminatory to women;’ (p.15). But this does not come close to identifying what the problems are or the extent of those problems. It is therefore of little surprise that the recommendations provided in the report are inadequate and ill-conceived.

The Review commissioned by the Home Office tells us that sharia councils are used for the most part by women to seek an Islamic divorce which fulfils a need in some Muslim communities to clarify their relationship status in the eyes of their faith. It also states that a ‘key finding’ is that ‘a significant number of Muslim couples fail to register their religious marriages’ meaning their marriage is not legal under English law. A consequence of not having a valid marriage under English law means that some Muslim women have ‘no option of obtaining a civil divorce’ (p. 5) and importantly cannot avail of the financial remedies available under the law either. Instead, the only option for these women is to go to sharia councils to determine relationship breakdown disputes. This is in line with previous research including a study by Cardiff University. The Review’s conclusion that rejection of the call to close sharia councils is therefore sound. It is a pity that the recommendations the Review decides to make are far from sound.

The recommendations have already been explained in a previous post on this site. Put briefly, the first recommendation is for legislative change; the second for awareness campaigns and the third for regulation. All three have their attractions but are to greater or lesser extent ill-conceived in the way in which they are expressed in the Review.

Recommendation 1: Legislative Change

Perhaps the worst is the first recommendation. This calls for amendments to 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’ (p.5). Although ensuring that Islamic marriages are registered would obviously overcome some of the concerns identified in the report and the wider literature, the recommendation is unclear.

This recommendation ignores the crucial questions of why such relationships are sometimes not currently registered (though there is some speculation on p.14) and whether the lack of registration points to a structural problem. It does not explore whether existing legal structures are inadequate in today’s far more plural and diverse society. Work by the Law Commission looking at marriage formalities and calls for cohabitation rights and the recognition of humanist weddings all suggest that the current legal framework may no longer be fit for purpose.

Instead, the Review blames the individuals involved. It calls for “amendments to the Marriage Act 1949 offences sections, so that the celebrant of any marriage, including Islamic marriages, would face penalties should they fail to ensure the marriage is also civilly registered” (p.5). This is very heavy-handed and is a solution to a completely different problem from that identified in the Review and the wider literature.

If there were evidence that celebrants were deliberately not registering marriages then this may be the solution. Criminalising religious marriages would only make sense if there was a fear of rogue celebrants forcing people to undergo religious ceremonies. However, there is no evidence of this.

The issue is that some couples are deciding either deliberately or accidentally to have a religious marriage that does not comply with the law on marriage registration. This might be because the law is unduly complex or restrictive. It might also be because of a choice not to have a civil marriage on the part of one or both parties. It might result from an unawareness that the religious marriage is not registered. In any of these situations, using the criminal law against a celebrant (assuming a celebrant can be identified) does not deal with the issue.

Oddly, the Review despite calling for celebrants to face penalties, then in the next sentence says that: “This would make it a legal requirement for Muslim couples to civilly register their marriage before or at the same time as their Islamic ceremony” (p.5). It is uncertain what is meant by ‘legal requirement’ here (is it the heavy-handed criminal penalties referred to in the previous paragraph?). And the implicit notion that those who decide not to comply with marriage registration laws are at fault is deeply unsettling. Even if the Review does not seem to know who is to blame: the celebrant or the couple.

The correct answer is neither. It is the legal framework that needs to change. A preferable approach, as suggested in an article by Dr Sharon Thompson and me, would be to look at how wider family law reform could mitigate the issues raised by unregistered Islamic marriages. Reform to the law on marriage formalities coupled with a review of the rights and protection given to cohabiting couples is desperately needed, as shown by The Times Family Matters campaign, and such reforms could lessen considerably the issue of unregistered religious marriages.

Although the rationale behind The Times campaign is questionable and the detail of such reform would need attention, the need for comprehensive family law reform is undeniable. As Dr Sharon Thompson and I have argued, piecemeal change as suggested by the report and as found in Private Members Bills will be insufficient since they operate within a flawed and outmoded legal framework.

The need to place the sharia debate within the wider context of family law is underscored by the Review’s comment that linking Islamic marriage to civil marriage would ensure that ‘a greater number of women have the full protection afforded to them in family law’ (p.6). The cuts to legal aid in recent years have dented this protection considerably. The report notes that severe cuts to legal aid for family law disputes as a result of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 is a cause of the increased use of Sharia Councils (p.10). Concerns about access to justice and the capacity and effectiveness of the State legal system to deal with the issues raised by relationship breakdown is therefore of much wider applicability. Criminalising rogue celebrants will achieve very little.

Recommendation 2: Awareness Campaigns

The second recommendation, which is the need for awareness campaigns, is largely unobjectionable and reflects the main suggestion made by the Cardiff University study.   However, previous campaigns about the lack of cohabitation rights have had little effect. There is a lack of detail as to how this could be actioned and achieved. Saying that ‘cultural change is required within Muslim communities’ (p.6) is patronising and vague in the extreme.

The Review is right to say that there is a clear need to highlight the legal protection that civilly registered marriages provide given the prevalence of the myth of common law marriage. But there is a concerning underlying assumption here about the importance and ubiquity of marriage which seems odd given the increasing numbers of cohabiting couples and current debates about heterosexual civil partnerships. At times, it seems that the Report presumes a 1950s idealistic depiction of personal relationships.

The Review’s further comments about the need for awareness campaigns demonstrate a rather confused understanding of the issues and law. The report states that ‘a clear message’ should be sent about ‘arbitration that applies sharia law’ (p.6) despite the fact that sharia councils rarely serve as arbitration bodies. The report also states that there ‘is the need to raise public awareness in communities as to the availability of legal aid and the exceptions’ to LASPO. Yet, surely the real issue in light of the LASPO cuts is that much of the support previously provided by the State is no longer available.

Recommendation 3: Regulation

The third recommendation is strangely pitched as an interim measure because ‘recommendations 1 and 2 of this report aim to gradually reduce the use and need for sharia councils’ (p.6.). This presumption that the existence of sharia councils is bad per se seems at odds with the more nuanced judgment elsewhere in the Review which rejects closure of councils and which expresses concern only where sharia councils are the only option (as in the case of relationship breakdowns following unregistered marriages) or where there is discrimination or disadvantage. It appears that the authors have not fully made their minds up. A tabloid-level base fear of sharia – or at least an awareness to nod in that direction – seems to be present here.

The report’s call for regulation is also underdeveloped. The report calls for ‘the creation of a body that would set up the process for councils to regulate themselves’ (p.6). This assumes a level of certainty as to the number let alone the nature of sharia councils that does not exist. The report repeatedly says that the institutions it is referring to are ‘councils’ rather than ‘courts’ (the term ‘tribunal’ is not considered) but does not explain why. This terminological insistence not only assumes a level of general consensus as to these terms but also an agreement as to the role of ‘sharia councils’ that simply does not exist.

The research to date shows that a variety of religious dispute resolution bodies refer to themselves both formally and informally using a variety of terms. Yet, the Review criticises the use of the terms ‘courts’ and ’judge’ by some of the institutions that it classifies as being ‘councils’. This surely shows that different bodies have different ideas about their identity and functions.

This, coupled with the unknown number of informal means of religious dispute resolution, mean that a universal system of regulation is impossible. The self-regulation envisaged by the Review concedes this, but it would mean that any regulatory body would cover only a proportion of sharia councils and that would probably be the proportion that we already know the most about.

Perhaps using an existing and more general body such as the Charity Commission or the Equality and Human Rights Commission might be preferable to creating a new specialist body, especially since presumably equality and freedom of religion issues would be posed by establishing a body to regulate just one faith. The report mentions but rejects such an approach on grounds of lack of evidence and uncertainty as to the number of sharia councils (p.19). However, ironically, these objections are even more compelling in the context of an establishment of a specialist regulatory body.

Another way ahead here perhaps can be found in some suggestions in the report that calls for the involvement of experts in family law practice. The proposed regulatory body is to include members with ‘specialist family law legal expertise’ (p.6). A suggested meeting is to be held with the President of the Family Division to consider a need for a specific practice direction (p.22). And a possible consultation is to be held with the Law Society as to ‘the practice of firms which profess to provide advice, advocacy and assistance in matters of sharia law’ (p.22).

Perhaps looking at how the issues raised by religious dispute resolution from the perspective of the family law professionals involved may give some concrete evidence of where there are problems in terms of religious bodies operating in ways that are incompatible with English law and which disadvantage women.

This would not, of course, give us the full picture. It would only highlight those issues that have been escalated to the extent that a family lawyer has been involved (and the LASPO cuts will have made that even rarer). But it would be one approach to get closer to identifying the actual problem beyond the now familiar concern about unregistered marriages (where, even there, uncertainties remain as to why registration has not occurred).

Conclusion

The Review’s conclusion that ‘intervention/regulation’ carries more advantage than no intervention’ (p.19) is sound. As I have argued elsewhere as part of the Cardiff University study and in work with Dr Sharon Thompson, deciding not to regulate despite concerns about discrimination effectively endorses such discrimination.

It is therefore extremely disappointing that the Home Office’s knee-jerk reaction to the report was to state that “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”.

Again, a default fear of sharia haunts the debate. Regulation of existing institutions that brings them into line with societal norms would not give them jurisdiction. This fear has also manifested itself in a desire to find quick solutions. The report has not adequately addressed its terms of reference but instead has raced to superficially appealing but ultimately ill-conceived recommendations.

The issues raised in the terms of reference are undoubtedly important and also difficult to evidence. Yet, the failure of the Review to properly address these questions (aside from making some general observations already commonplace in the literature and making some speculations based on ad hoc evidence), has meant that the report has not precisely identified the issues that need to be addressed. The failure to address them points to a missing evidence base. We still do not know enough about the activities of sharia councils to know how and the extent to which they operate in a way that is incompatible with English law and which discriminates against minorities within minorities.

It follows that its recommendations are rushed, without foundation, ill-conceived and inevitably likely to muddy the issue in the public sphere as shown by the Home Office’s reflex reaction. This is clearly an area where further thought and research is needed and so it is a pity that the Independent Review into the Application of Sharia Law in England and Wales amounts to little more than a wasted opportunity.

Russell Sandberg

Cite this article as: Russell Sandberg, “A Fear of Sharia: why the Independent Report is a wasted opportunity” in Law & Religion UK, 7 February 2018, http://www.lawandreligionuk.com/2018/02/07/a-fear-of-sharia-why-the-independent-report-is-a-wasted-opportunity/

10 thoughts on “A Fear of Sharia: why the Independent Report is a wasted opportunity

  1. I’m afraid I can’t resist telling what happened to me at Archbishop Rowan’s lecture ten years ago.

    It was a cold night, the concourse of the Royal Courts of Justice is enormous and not exactly well-heated and I went to the lecture straight from the office – so I was seriously under-dressed for the weather. As the evening progressed I got colder and colder until by the end of the lecture I was bloody freezing. So towards the end of the questions I decided to slip away and go home for a mug of hot coffee.

    I walked out of the front entrance into a blaze of lights: someone stuck a microphone under my nose and said, “We’re Sky News and we’re interested in comments on the Archbishop’s lecture: what did you think of it” – or words to that effect.

    I was already on camera so I could hardly turn and run. I obviously didn’t want to criticise Rowan’s lecture – which I was hoping to read carefully on-line the following day – so I breathed deeply, looked into the camera and, in as boring a manner as I could muster, said something like “Well, it’s all very complicated. As you’ll know, under the Arbitration Act 1996, the parties can agree on any person they wish as an arbitrator, and it’s not uncommon for two Jewish people in a business dispute to appoint the London Beth Din…”.

    I droned on like that for a couple of minutes hoping that they thought Beth Din was a minor Aussie soap actress, they turned off the lights, they thanked me, and I scooted off home at very high speed to catch the 10 o’clock bulletin. Mercifully, I’d successfully bored for Britain and they didn’t use it. Phew!

    • I completely, but respectfully, disagree with Russell in his criticism of the proposal to criminalise the performance of non-registered marriages.

      The Marriage Act when it was passed made it a criminal offence to perform a marriage that wasn’t registered and that law continues to apply to Jews and Christians. It is merely an anomaly in the wording of s.75 that means it is not being applied to Muslim marriages also. The Channel 4 programme ‘Whats wrong with Muslim marriages’ found that the majority of Muslim wives had assumed that their marriages were lawful and only found out the truth when problems arose.

      Yes: a full review of Marriage Law is desirable but that can so often become an excuse to kick problems into the long grass. In the meantime, other faiths – Sikhs, Hindus, Ahmadiyya Muslims etc – are all managing to operate within the law either by registering their places of worship or by requiring a civil marriage before the religious ceremony is held.

      • I’m not even sure that registering places of worship is a cure in all circumstances. In MA v JA and the Attorney General [2012] EWHC 2219 (Fam), a disputed ceremony had taken place in a mosque that had been registered for marriage: the defect was that the imam who conducted the ceremony was not, at the time, an ‘authorised person’. The Court held that the result of the ceremony had been to constitute a valid marriage despite the parties’ failure to comply with the civil preliminaries.

        So all was well that ended well – but no couple, given the choice, would want to go to the Family Division for a declaration that their marriage was valid.

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  3. As a student of Arbitration Law, I am more interested in the place of Sharia in the context of disputes inter partes, i.e. where no public interest exists.

    To bring all purported marriages amarital-marital relationships into an immediate and effective legal framework, it seems to me that all that is needed is to provide for Marriage by Repute. If persons go through a form of marriage, make declarations, or live together so as to make a commitment evident, they are deemed for all legal purposes to be married. Perhaps it might be a Presumption rebuttable within a fixed period.

    Property and Custody rights would follow. Nothing else would be necessary and the rule could apply to all gender combinations whether or not sexual relations were involved.

    Geoffrey Beresford Hartwell

  4. We have been here before, at any rate in Scotland. Under Scots law, marriage ‘by cohabitation with habit and repute’ remained a valid method of forming a marriage until it was abolished by the Family Law (Scotland) Act 2006 (and, even then, the abolition was not retrospective and did not invalidate subsisting irregular marriages).

    The problem was the difficulty in relation to the law of succession. This was a particular problem in Scotland, where a widow or widower has always – so far as I’m aware – had an indefeasible right to inherit a share of the deceased spouse’s estate and cannot be disinherited. The problem in the case of a marriage by repute was proving to the satisfaction of the court that one was, in fact, the surviving spouse. So, in the end, the Scottish Parliament abolished it.

    • Indeed, Frank, I seem to recall references to a ‘Relict’ on signage around a hall years ago. I appreciate the problem of proof, that is why I thought of the rebuttable presumption and the notion of partnership, or a variation of it, in one’s domicile. The diel’s in the detail!

  5. Some faith communities – in fact, some communities – do treat men and women differently. Why is that a problem? Isn’t the only possible solution, if it wasn’t itself unworkable, namely the state control of religion, a worse problem? Out of the frying pan, and into the fire?

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