Early next month, the Commons is due to give a second reading to the Arbitration and Mediation Services (Equality) Bill [HL] 2015-16. Baroness Cox has been promoting this Bill since 2012, but all previous attempts have failed to make it out of the House of Lords due to lack of Parliamentary time.
My view is that the Bill will not help to achieve any of its intended goal but will alienate many Muslims. Accordingly, it should be killed off like other unwanted Private Members’ Bills by the Government refusing to give it additional Parliamentary time.
What the Bill seeks to achieve
Baroness Cox has long been concerned by some real problems that are faced by many Muslim women in the UK. These concerns are genuine, and I share them. In no particular order, I have listed just a few of them below. They are numbered for ease of later reference but are not in any order of priority:
- Women who obtain a civil law divorce, but find that their husband will not grant them a religious divorce. Without a religious divorce, the woman’s own religious beliefs or those of her intended new husband will preclude her entering into a second religious marriage. When women in such circumstances approach groups of religious scholars (here called “Shariah councils”) they are often badly treated by male dominated bodies which may try to persuade her to return to her first husband in circumstances when that might even lead to domestic violence.
- Women who are coerced by relatives into asking Shariah councils to divide the estates of intestate parents, instead of claiming their rights under civil law.
- Women who after divorce are coerced by relatives into asking Shariah councils for decisions about child custody, instead of claiming the custody rights civil law grants them.
- Women, or men, may ask Shariah councils to arbitrate a commercial dispute, and find that the Shariah council gives less weight to the evidence of female witnesses than to male witnesses.
What the Bill says
The Bill is written in scrupulously neutral language which does not mention any religion. However, “everybody knows” that it is directed at the operation of Shariah councils. That is made clear by the House of Lords briefing paper and by the House of Lords 23 October 2015 second reading debate.
Last October I wrote a detailed clause by clause review. The text of the Bill has not changed materially from that which I reviewed. In fact the sole change is substituting “2016” for “2015” in the citation clause, 7(4) so if Parliament passes it, it will be called “The Arbitration and Mediation Services (Equality) Act 2016.” Accordingly, my detailed comments are as applicable now as they were then.
Some of the text of the Bill is material that I don’t think anyone could possibly disagree with. That is the case with the following clauses:
- Clause 4, which applies to court orders based on negotiated agreements. The court can set aside any order if it considers that one party’s consent was not genuinely given.
- Clause 5, which criminalises the intimidation of domestic abuse victims who are assisting in an investigation or are potential witnesses.
- Clause 6, which criminalises falsely claiming the powers of a court and falsely claiming the power to make rulings under the Arbitration Act 1996.
However, as my detailed review points out, these clauses appear unnecessary. The courts almost certainly have the power which Clause 4 seeks to give them, while the conduct which clauses 5 and 6 seek to criminalise is almost certainly criminal already under existing law.
If Baroness Cox can demonstrate that existing law is inadequate for these purposes, then she will have my wholehearted support in getting clauses 4, 5 and 6 onto the statute book.
The main operative provision of the Bill is clause 1, along with clauses 2 and 3 which are basically just there to help to make clause 1 effective.
Without getting into the detailed wording, what this part of the Bill would do is to prohibit any arbitration under the Arbitration Act 1996 if the arbitrator discriminates on grounds of sex. The Bill explicitly make it sex discrimination to treat the evidence of a woman as less than that of a man, or to proceed on the assumption that female heirs are entitled to less than male heirs, or to assume that a woman has less property rights than a man. (And vice versa.)
The greatest weakness of the Bill is that clause 1 simply makes no difference to the first problem in my list, problem (1).
When a Shariah council (or an individual religious scholar) gives a ruling that a particular woman’s religious marriage has ended, despite her husband not having given her a religious divorce himself, that body is engaged in a function that is purely religious. The ruling is not given any recognition by the state, just as the religious marriage itself was not recognised by the state. The ruling derives any effectiveness that it may have purely from the willingness of the woman, her future husband, and their Muslim relatives and friends to regard it as having some religious significance. It means that the woman and her intended husband can have a religious marriage and then engage in sexual intercourse without committing a sin.
The Arbitration Act 1996 is irrelevant to the operation of the Shariah council in this case, just as all other state law is irrelevant. The state can no more tell such a Shariah council how to give its religious opinions than it can instruct a Roman Catholic priest whether he should forgive a particular sinner in the confessional booth.
Clause 1 also has no direct impact on problem (2). In the case of such religious divorces (in the complete absence of a civil wedding) the splitting couple would normally keep the assets in their own names, subject to any civil law claims arising from English common law and equity. (I will not attempt to detail them, as my study of equity was 40 years ago and the law has moved on!)
However, the splitting couple may jointly voluntarily ask a Shariah council to divide their assets in which case Arbitration Act 1996 and therefore Clause 1 potentially come into play. As my review explores in more detail, I remain to be convinced, if two consenting adult parties of sound mind want, for their own religious reasons, to have an arbitration where the arbitrator gives more weight to male testimony than to female testimony, why they should not be free to do so.
Why the Bill is harmful and a better way forward
As explained above and in my detailed review, the Bill will achieve next to nothing. However, it will, indeed already has, upset many Muslims. Legislating it would enable non-violent extremists to paint this as the British state “criminalising Shariah.” Four years ago, I wrote on this site “What Shariah really means to Muslims” and I recommend reading it to understand why Muslims get upset when Shariah is criticised.
What the Government should do is put more effort into public education among young Muslims, especially Muslim girls, with two main goals:
- Explaining why their own best interests require them to have a civil wedding before they have a religious wedding.
- Encouraging them to use the new model Muslim marriage contract published in 2008 by a number of Muslim organisations. This allows the wife to religiously divorce her husband, solving problem (1) above. It also prohibits the husband taking a polygamous second wife.