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A Study of the Use of Sharia Law in Religious Arbitration in the United Kingdom and the Concerns That This Raises for Human Rights

  • Jessie Brechin (a1)
Abstract

The use of Islamic norms in the determination of arbitration in England and Wales has become a source of great controversy. Concerns are raised for the human rights of vulnerable parties who may be pressured into arbitrations and who may not be treated fairly under the agreed rules of arbitration or by arbitrators themselves. The Arbitration Act 1996 limits the ability to appeal arbitration decisions and as such does not safeguard the rights of these parties. As a signatory to the European Convention on Human Rights the UK is under an obligation to uphold human rights standards domestically, and it is argued that the way in which arbitration on religious norms is currently regulated does not comply with this obligation. This article considers some of the possible adaptations or alterations that could rectify the situation, improving parties' experience of religious arbitration and ensuring that the system remains compatible with international human rights obligations.

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1 As discussed in Helfand, M, ‘Religious arbitration and the new multiculturalism: negotiating conflicting legal orders’, (2011) 86 NYU Law Review 12311305.

2 Ibid.

3 Williams, R, ‘Civil and religious law in England: a religious perspective’, (2005) 10 Ecc LJ 262282.

4 See for example the One Law for All campaign, <www.onelawforall.org.uk>, accessed 6 June 2013.

5 To attempt to assess the extent to which sharia law operates within communities themselves on a day-to-day basis would require extensive anthropological research and is beyond the scope of this article.

6 Arbitration Act 1996, c 23. The situation in Scotland is governed by the Arbitration (Scotland) Act 2010, which will not be specifically discussed, although general arguments surrounding religious arbitration might equally apply in that jurisdiction.

7 Their decisions are not enforceable in domestic courts beyond any contractual value they may have; however, their decisions may be considered binding within the community. See for example the Islamic Sharia Council, <www.islamic-sharia.org> (accessed 6 June 2013), which offers decisions on all areas of Muslim life.

8 This term is used to denote the forms and instances of arbitration where a dispute is decided on the basis of religious principles.

9 Williams, ‘Civil and religious law in England’.

10 Similar comments were made by Lord Phillips: ‘Equality before the law’, speech at the East London Muslim Centre, 3 July 2008, available at <http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/lcj_equality_before_the_law_030708.pdf>, accessed 7 June 2013. For a comprehensive discussion of the debate surrounding these speeches, see Griffith-Jones, R (ed), Islam and English Law: rights, responsibilities and the place of shari'a (Cambridge, 2013).

11 One such study, by Civitas, suggested that there were more than 85 Islamic tribunals in operation in England and Wales. MacEoin, D, Sharia Law or ‘One Law for All’?, ed Green, D (London, 2009), available at <http://www.civitas.org.uk/pdf/ShariaLawOrOneLawForAll.pdf>, accessed 7 June 2013.

12 Butler-Sloss, E and Hill, M, ‘Family law: current conflicts and their resolution’, in Griffith-Jones, Islam and English Law, pp 108115 at pp 111–112.

13 Ramadan, T, Western Muslims and the Future of Islam (Oxford, 2003), p 31.

14 Examples of Catholic and Jewish tribunals are discussed extensively in G Douglas, N Doe, S Gilliat-Ray, R Sandberg and A Khan, ‘Social cohesion and civil law: marriage, divorce and religious courts’, available at <http://www.law.cf.ac.uk/clr/Social%20Cohesion%20and%20Civil%20Law%20Full%20Report.pdf> accessed 7 June 2013. Further discussion of the relationship between Jewish religious law and English law can be found in Jackson, B, ‘“Transformative accommodation” and religious law’, (2009) 11 Ecc LJ 131153.

15 Jackson, ‘Transformative accommodation’.

16 Zubaida, S, Law and Power in the Islamic World (London, 2003), p 11.

17 Makdisi, J, ‘Legal logic and equity in Islamic law’, (1985) 33(1) American Journal of Comparative Law 6392.

18 Ibid, p 63. It has been pointed out that in many ways the lack of a codified system of laws closely resembles the common law system, in that rules are derived from accepted standards and past experience. See also Turner, B, Religion and Modern Society: citizenship, secularisation and the state (Cambridge, 2011), ch 8.

19 A Mayer, ‘Gender discrimination and human rights in Iran’, (2001) 19 Iran Nameh, available at <http://fis-iran.org/en/irannameh/volxix/gender-discrimination>, accessed 7 June 2013.

20 Al Midani v Al Midani [1999] Lloyd's Rep 923.

21 Turner, Religion and Modern Society, p 167: we ‘must avoid prejudicially assuming that something called “Islam” does not accord women the same rights as something called “the West”. These monolithic notions mask the fact that within Islam as well as in the West there are more or less endless debates about how women (men, children, the elderly, the sick and so forth) should be treated. Neither the common law nor the Shari'a are static, homogenous or consistent systems.’

22 International Commission of Jurists, Human Rights in Islam: report of a seminar held in Kuwait in December 1980 (Geneva, 1982), p 7.

23 Coulson, N, A History of Islamic Law (Edinburgh, 1964), p 14.

24 Zubaida, Law and Power, p 177.

25 Baderin, M, ‘An analysis of the relationship between shari‘a and secular democracy and the compatibility of Islamic law with the European Convention on Human Rights’, in Griffith-Jones, Islam and English Law, pp 7293 at p 82.

26 M Boyd, ‘Dispute resolution in family law: protecting choice, promoting inclusion’ (2004), p 10. Available at <http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/fullreport.pdf>, accessed 7 June 2013.

27 Ministry of Justice Practice Direction – Pre-action Conduct, §8.1.

28 The submission of the Christian Legal Fellowship in Boyd, ‘Dispute resolution in family law’, p. 63.

29 Williams, ‘Civil and religious law in England’, p 262.

30 See R Lambert and J Githens-Mazer, ‘The demonisation of British Islamism’, The Guardian, 1 April 2009, available at: <http://www.guardian.co.uk/commentisfree/belief/2009/mar/31/religion-islam>, accessed 7 June 2013.

31 P Shah, ‘Judging Muslims’, in Griffith-Jones, Islam and English Law, pp 144–156 at p 153. See also Boyd, ‘Dispute resolution in family law’, p 65.

32 M Shaiki, quoted in Boyd, ‘Dispute resolution in family law’, p 64.

33 Ahmed, F, ‘Personal autonomy and the option of religious law’, (2010) 24 International Journal of Law, Policy and the Family 222244.

34 As quoted in Ahmed, F and Luk, S, ‘Religious arbitration: a study of legal safeguards’, (2011) 77 Arbitration 290303 at 292; this concept was central to the arguments put forward by both Dr Williams and Lord Phillips in their speeches. For a more complete discussion of the concept, see Ahmed, F and Luk, S, ‘How religious arbitration could enhance personal autonomy’, (2012) 1 Oxford Journal of Law and Religion 424445.

35 Shachar, A, Multicultural Jurisdictions: cultural differences and women's rights (Cambridge, 2001), p 122.

36 Bakht, N, ‘Were Muslim barbarians really knocking on the gates of Ontario? The religious arbitration controversy – another perspective’, (2005) 40 Ottawa Law Review 6782.

37 Ahmed, ‘Personal autonomy’, p 5.

38 Jackson, ‘Transformative accommodation’, p 150.

39 Vulnerable groups to which these fears apply include Muslim women, particularly those who depend on their husband or community for financial support.

40 Submission of the Legal Education and Action Fund (LEAF) to Boyd, ‘Dispute resolution in family law’ as quoted at p 50. Further potential consequences are discussed, with reference to India, in Ahmed, ‘Personal autonomy’.

41 Hefland, ‘Religious arbitration and the new multiculturalism’, p 1287.

42 Submission of Homa Arjomand of the International Campaign Against Shariah Courts in Canada to Boyd, ‘Dispute resolution in family law’, quoted at p 49.

43 Phillips, ‘Equality before the law’.

44 Specifically that a female heir could only inherit half as much as a male heir. See Al Midani v Al Midani.

45 Saville LJ, ‘The Arbitration Act 1996: what we have tried to accomplish’, (1997) 13 Const LJ 410.

46 Ibid, p 411.

47 See, for example, D Speller and J Fly, ‘The Arbitration Act ten years on: a paragon of party autonomy?’, in The International Comparative Legal Guide to International Arbitration 2007, available at <http://www.wilmerhale.com/uploadedFiles/WilmerHale_Shared_Content/Files/Editorial/Publication/speller.pdf>, accessed 11 June 2013.

48 Arbitration Act 1996, s 1.

49 Edge, I, ‘Islamic finance, alternative dispute resolution and family law: developments towards legal pluralism?’, in Griffith-Jones, Islam and English Law, pp 116143 at p 122.

50 Ibid, p 121.

51 Jivraj v Hashwani [2011] UKSC 40.

52 Employment Equality (Religion or Belief) Regulations 2003, SI 2003/1660.

53 Jivraj at para 27.

54 Buxton, R, ‘Discrimination in employment: the Supreme Court draws a line’, (2012) 128 LQR 1.

55 Although an argument might be put forward that they are performing a public function.

56 Reed, R and Murdoch, J, Human Rights Law in Scotland (third edition, Haywards Heath, 2011), 7.18.

57 X v Denmark, App no 7374/76 (ECtHR, 8 March 1976) at para 158.

58 A Danish clergyman had imposed a religious requirement on the parents of children whom he was asked to christen; the Church dismissed him from his employment as he had no power to do so. The clergyman complained to the Court on the basis that his right to freedom of religion had been violated. It was held that the Church was not obliged to secure the religious freedom of its members, and that the right to resign from employment and exit the community was a sufficient safeguard.

59 A similar principle was shown in the case of X v United Kingdom App no 8160/78 (EComHR 12 March 1981), (1981) 22 DR 27, and in Knudsen v Norway App no 11045/84 (EComHR, 8 March 1985), (1985) 42 DR 247.

60 Ahmed, ‘Personal autonomy’.

61 It is unclear whether Article 6 applies directly to arbitration tribunals because, although they derive their authority from statute, they are used to resolve private disputes. There has been no judgment determining this question directly. However it is clear that the state is at least under an obligation not to endorse decisions of arbitration tribunals that have been taken in contravention of the ECHR.

62 Pursuant to section 69 of the Arbitration Act 1996, which will be discussed in more detail below.

63 Williams, ‘Civil and religious law in England’.

64 Reed and Murdoch, Human Rights Law in Scotland, §§ 3.32–3.34.

65 Millar v Dickson, [2001] UKPC D4 at para 53.

66 See the discussion of the European Islamic ‘Charter of Values’ in Jackson, ‘Transformative accommodation’.

67 For example, Article 6 of the OIC Cairo Declaration on Human Rights in Islam states that:

(a) Woman is equal to man in human dignity and has rights to enjoy as well as duties to perform; she has her own civil entity and financial independence, and the right to retain her name and lineage;

(b) The husband is responsible for the support and welfare of the family.

68 Baderin, M, International Human Rights and Islamic Law (Oxford, 2003), p 60.

69 Refah Partisi (Welfare Party) and Others v Turkey App nos 41340/98, 41442/98, 41343/98 and 41344/98 (ECtHR, 13 February 2003) at para 123. The decision of the court and many of the statements made in the judgment were not uncontroversial and much criticism has been levelled at Strasbourg in that respect. The facts of this case, concerning the dissolution of the Refah Party by the Turkish Constitutional Court, are not immediately relevant to the present article however. For further discussion of the case see Griffith-Jones, Islam and English Law.

70 Pellegrini v Italy App no 30882/96 (ECtHR, 20 July 2001).

71 The Vatican is not a signatory to the ECHR and therefore no case could be brought against them for the decision.

72 It was not suggested that this irregularity was because of the gender of the applicant; therefore it was not considered under Article 14.

73 Sometimes also called the doctrine of non-justiciability.

74 As discussed in HH Sant Baba Jeet Singh Maharaj v Eastern Media Group Ltd [2010] EWHC (QB) 1294 at para 5 per Eady J: ‘the well-known principle of English law to the effect that the courts will not attempt to rule upon doctrinal issues or intervene in the regulation or governance of religious groups’.

75 R v Secretary of State for Education and Employment [2005] UKHL 15 per Lord Nicholls of Birkenhead.

76 Sandberg, R, Law and religion (Cambridge, 2011), p 200.

77 Khaira v Shergill [2012] EWCA Civ 983.

78 Ibid at para 64.

79 Ibid at para 19.

80 Arbitration Act 1996, s 69(3)(a) (emphasis added).

81 Other relevant sections of the Act include s 1, s 68 and s 70. See, for example, the case of HMV UK Ltd v Propinvest Friar Ltd Partnership [2011] EWCA Civ 1708.

82 Some rights can be restricted, but only where this pursues a legitimate aim, is in accordance with the law and deemed necessary in a democratic society. There are further procedures in place for derogations in times of national emergency.

83 McGoldrick, D, ‘The compatibility of an Islamic/shari‘a law system or shari‘a rules with the European Convention on Human Rights’, in Griffith-Jones, Islam and English Law, pp 4271 at p 46.

84 See Boyd, ‘Dispute resolution in family law’, s 8, for the full recommendations.

85 See submission of B'nai Brith to Boyd, ‘Dispute resolution in family law’.

86 Bakht, N, ‘Family arbitration using sharia law’, (2004) 1 Muslim World Journal of Human Rights 124 at 7.

87 Boyd, ‘Dispute resolution in family law’, p 109.

88 Jivraj.

89 Boyd, M, ‘Ontario's shari‘a court: law and politics intertwined’, in Griffith-Jones, Islam and English Law, pp 176186 at p 180.

90 Boyd, ‘Dispute resolution in family law’, p 110.

91 Supreme Holy Council of the Muslim Community v Bulgaria App no 39023/97 (ECtHR, 16 November 2004) at para 96.

92 Boyd, ‘Dispute resolution in family law’, s 8.

93 Family Statute Law Amendment Act 2006, s 59.2.

94 Boyd, ‘Dispute resolution in family law’, p 53.

95 Bakht, ‘Were Muslim barbarians really knocking?’, p 19.

96 Turner, Religion and Modern Society, p 173.

97 Submission of the Muslim Canadian Congress to Boyd, ‘Dispute resolution in family law’, p 52.

98 The situation in Ontario is still relatively new and there is little information available on the consequences of this move. The discussion in this section is therefore speculative, based on assertions made by various academics.

99 Supreme Holy Council v Bulgaria at para 96.

100 Baderin, ‘Analysis of the relationship between shari‘a and secular democracy’, p 73.

101 That is not to say that a decision of the Vatican would necessarily be above reproach, as shown in the case of Pellegrini. However, it does go some way to ensure that there is at least a uniform application of principles, which may then be monitored effectively.

102 See Katz, D, The Jews in the History of England (Oxford, 1994).

103 MacEoin, Sharia Law or ‘One Law for All’?, p 7.

104 Arbitration and Mediation Services (Equality) Bill. This Bill had its second reading on 19 October 2012 but did not progress further as it was felt that its provisions were sufficiently covered by existing legislation and that introducing a separate Bill would complicate and confuse the area. Speaking on the BBC's Panorama episode ‘Secrets of Britain's sharia councils’, aired in April 2013, Baroness Cox indicated her intention to reintroduce the Bill during the next Parliamentary session.

105 Arbitration and Mediation Services (Equality) Bill, part 2, s 3.

106 Ibid, part 2, s 4.

107 Farrow, T, ‘Re-framing the sharia arbitration debate’, (2006) 15 Constitutional Forum/Forum constitutionnel 7986 at 80.

108 Ahmed, Religious Arbitration, p 298.

109 It is suggested that, although some of these concerns could be remedied by legislation, deeper issues would remain.

110 Letter from the Ministry of the Attorney General to the Canadian Council of Muslim Women, as quoted in Bakht, ‘Family arbitration using sharia law’, p 6.

111 A Emon, ‘A mistake to ban Sharia’, available at <http://www.law.utoronto.ca/news/article-emon-mistake-ban-sharia>, accessed 12 June 2013.

112 Turner, Religion and Modern Society, p 157.

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