The Lord Chief Justice, following the Archbishop of Canterbury, was wrong to endorse Sharia Courts. He fell for spin, and failed to take human rights into account.
There now exist, in the United Kingdom, several (according to some reports, as many as 85) “Sharia Courts” administering “Sharia Law” which, it is popularly believed, somehow prevails over certain areas of British Law. They hear civil cases (they claim no criminal jurisdiction) on such matters as forced marriages, domestic violence, family disputes, commercial and debt disputes, inheritance disputes and mosque disputes.
Much more ancient is the London Beth Din, the Chief Rabbi’s court administering Jewish law. This article concentrates on Sharia Courts, but the same arguments apply to the Beth Din and any other religious courts.
What is the true legal position and what can and should be done about these courts? The “One Law for All” campaign is a leading opponent of Sharia Law and presents some powerful arguments against it. This article proposes an alternative and complementary approach, based on atheist principles.
At least some of these “Sharia Courts” are branches of the “Muslim Arbitration Tribunal” (“MAT”), operating at several locations including London, Birmingham, Bradford and Manchester. MAT is run by a governing council, under the chairmanship of barrister and Islamic scholar Shaykh Faiz ul Aqtab Siddiqi.
The “Sharia Law”, administered by MAT, is the:-
Qur’anic Injunctions and Prophetic Practice as determined by the recognized Schools of Islamic Sacred Law.
“Arbitration” has a long and distinguished history in Britain and beyond. Essentially, it is a private system of civil justice, supplanting, except as the enforcer of last resort, the state judiciary and, if the parties so choose, the law of the land itself. Its modern principles are set out in Section 1 of the Arbitration Act 1996:-
The provisions of this Part are founded on the following principles, and shall be construed accordingly:-
(a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;
(b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;
(c) in matters governed by this Part the court should not intervene except as provided by this Part.
In practice, an arbitration agreement is
- embedded in a larger contract (commercial or consumer) and applies only to disputes arising out of it; or
- entered into, after the event, in relation to a dispute (usually contractual) that has arisen between the parties.
In principle, however, two people can enter into a stand-alone arbitration agreement covering all future disputes which might arise between them under present or future contracts, torts, property, trustee, family, inheritance or other matters. Multiple private legal systems can co-exist within the jurisdiction of one state. There is nothing wrong with that per se.
There is everything wrong with legal systems, whether single or multiple and whether state or private, that are religious. One law for all versus many laws for many is not the issue; the issue is religious law versus secular law.
Arbitration is based upon contract and can only apply if the parties have entered into a written and valid “arbitration agreement” which, under Section 6(1) of the Arbitration Act, means:-
… an agreement to submit to arbitration present or future disputes …
Significantly, MAT has not published any form of arbitration agreement nor do its published “Procedure Rules” make any reference to an arbitration agreement.
Arbitration is particularly suitable to commercial disputes, especially those involving highly specialist knowledge or a cross-border element. The Arbitration Act was designed accordingly, but Siddiqi has said:-
We realised that under the Arbitration Act we can make rulings which can be enforced by county and high courts. The Arbitration Act allows disputes to be resolved using alternatives like tribunals. This method is called alternative dispute resolution, which for Muslims is what the Sharia courts are.
In arbitration parlance, “arbitral tribunal” (in this case, the MAT) is equivalent to the court, “arbitrator” to the judge and “award” to the judgment.
Section 66, of the Arbitration Act, provides:-
(1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.
(2) Where leave is so given, judgment may be entered in terms of the award.
Up until that moment, resolution of the dispute is a contractual matter between the parties. At that moment, the award becomes a judgment of the court.
So, MAT claims:-
MAT will operate within the legal framework of England and Wales thereby ensuring that any determination reached by MAT can be enforced through existing means of enforcement open to normal litigants. Although MAT must operate within the legal framework of England and Wales, this does not prevent or impede MAT from ensuring that all determinations reached by it are in accordance with one of the recognised Schools of Islamic Sacred Law. MAT will therefore, for the first time, offer the Muslim community a real and true opportunity to settle disputes in accordance with Islamic Sacred Law with the knowledge that the outcome as determined by MAT will be binding and enforceable.
However, this ignores the “by leave of the court” requirement which, if applied in accordance with the Human Rights Act 1998, negates MAT’s claim.
The Arbitration Act generally gives the court a discretion whether or not to grant leave. The court must refuse leave if “the tribunal lacked substantive jurisdiction to make the award”, but the Arbitration Act does not prescribe any circumstances in which the court must grant leave.
Section 46(1) of the Arbitration Act provides:-
The arbitral tribunal shall decide the dispute:-
(a) in accordance with the law chosen by the parties as applicable to the substance of the dispute, or
(b) if the parties so agree, in accordance with such other considerations as are agreed by them or determined by the tribunal.
The parties’ choice of law is contained in the arbitration agreement as either an express or an implied term. In this case, it is Sharia Law.
Sharia Law is primarily a set of “Qur’anic Injunctions”, starting with (Surah Al Shura 42:15):-
Say: I believe in the Book which Allah has sent down; and I am commanded to judge justly between you. Allah is our Lord and your Lord. For us is the responsibility for our deeds, and for you for your deeds. There is no contention between us and you. Allah will bring us together, and to Him is our final goal.
Therefore, the parties’ choice of Sharia Law is dependent on their holding the above belief, and also belief that God exists. Such belief must subsist for the duration of the arbitration agreement, from formation until (at latest) the court granting leave to enforce.
Article 9(1), of the European Convention on Human Rights, provides:-
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief …
This is absolute and unqualified.
Section 3(1), of the Human Rights Act, provides:-
So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.
The Arbitration Act – in particular, the “by leave of the court” requirement – must be so read and given effect.
Furthermore, Section 6(1), of the Human Rights Act, provides:-
It is unlawful for a [court] to act in a way which is incompatible with a Convention right.
Suppose that, at some point during the course of arbitration proceedings, one of the parties ceased to hold the above beliefs (it may be assumed that he held them at the outset – although this is questionable) – in other words, changed his religion or belief. The parties’ choice of Sharia Law would no longer be sustainable.
Therefore, if the court were to grant leave for an award, based on Sharia Law, to be enforced, it would not be giving effect to the Arbitration Act in a way which was compatible with a party’s freedom to change his religion or belief.
That much is obvious. Less so is the following situation.
One party will only apply to enforce the award if the other parties fails to comply with it. Failure to comply means either that the other party does not accept the validity of the award or that he does accept it but is disobeying it. If the latter, then he is disobeying the command of God.
In either case, if the court were to grant leave for the award to be enforced, it would not be giving effect to the Arbitration Act in a way which was compatible with a party’s right to freedom of religion.
It follows that the court should never grant leave to enforce an award made by MAT. Therefore, MAT’s above claim is flawed, as is Siddiqi’s claim:-
… we can make rulings which can be enforced by county and high courts.
This is a matter for the judiciary, not for the government or the legislature.
Unfortunately, the most senior judge in the land has taken a different view, presumably under political influence from, among others, the Archbishop of Canterbury. Lord Phillips of Worth Matravers, then Lord Chief Justice of England and Wales, now President of the Supreme Court of the United Kingdom, said in July 2008:-
It is possible in this country for those who are entering into a contractual agreement to agree that the agreement shall be governed by a law other than English law. Those who, in this country, are in dispute as to their respective rights are free to subject that dispute to the mediation of a chosen person, or to agree that the dispute shall be resolved by a chosen arbitrator or arbitrators. There is no reason why principles of Sharia Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution. It must be recognised, however, that any sanctions for a failure to comply with the agreed terms of the mediation would be drawn from the laws of England and Wales.
He confuses the issue by referring to “mediation” as well as (and more than) “arbitration”. MAT, however, is arbitration; it is not mediation. Mediation and arbitration are both forms of “alternative dispute resolution” (“ADR”), but they are quite different things. Mediation is a process in which a neutral person assists the parties to reach a consensual solution to their dispute.
Phillips refers to:-
… sanctions for a failure to comply with the agreed terms of the mediation …
This is misleading. Mediation is not, in itself, binding in the same way as arbitration, although it may lead to an agreement which is binding in ordinary contract law.
He appears to be echoing Siddiqi, who says:-
The Arbitration Act allows disputes to be resolved using alternatives like tribunals. This method is called alternative dispute resolution, which for Muslims is what the Sharia courts are.
This is disingenuous. The Arbitration Act allows disputes to be resolved using just one alternative, arbitration; it makes no provision for ADR generally, or mediation in particular.
The flawed logic appears to be this: judicial policy (under the so-called “Woolf reforms”) is that ADR (particularly mediation) is a good idea and should be encouraged. MAT is ADR. Therefore, MAT is a good idea and should be encouraged.
However, Phillips’ main omission (perhaps obscured by the above logic) is his failure to take human rights and Article 9 into account.