Written evidence submitted by Baroness Caroline Cox

Summary

We are fortunate to live in a democracy which enshrines the principle of equality before the law and is committed to the promotion of gender equality.

However, there are increasing concerns that many women and girls in this country today are suffering from systematic religiously-sanctioned gender discrimination, with particular reference to the application of Sharia law operating as a parallel quasi-legal system.

As the then Home Secretary Theresa May has said: “There is evidence of women being ‘divorced’ under Sharia law and left in penury, wives who are forced to return to abusive relationships because Sharia councils say a husband has a right to ‘chastise’, and Sharia councils giving the testimony of a woman only half the weight of the testimony of a man”.[1]

Respect for freedom of religion and belief

In a free society, individuals must be able to organise their affairs according to their own principles, whether religious or otherwise. However, we cannot condone situations where rulings are applied which are fundamentally incompatible with our country’s laws, values, principles and policies. 

Concerns

• Arbitration tribunals which operate according to Sharia law and discriminate against women. Examples of such rulings include: inequality in access to divorce (for men often so easy it is effectively free and unconditional); polygamy (practiced by men who have multiple ‘wives’ and numerous children); discriminatory child custody policies and inheritance laws; and the implicit sanctioning of domestic violence.
• Arbitration tribunals which apply Sharia law going beyond their legal remit, including addressing cases of grievous bodily harm which should come to the police and the formal legal system.
• Sharia councils operating as ‘courts’ with apparent legal authority.
• Muslim women being coerced into agreeing to go before a ‘Sharia court’, council or Arbitration tribunal rather than the UK courts, or lacking information regarding any alternative system.

I have submitted a Private Member’s Bill, the Arbitration and Mediation Services (Equality) Bill, which seeks to address some of these concern. Its provisions would:

• Strengthen the duties of public bodies to ensure that women are made aware of their legal rights;
• Strengthen the powers of the police and judiciary to protect victims of abuse;
• Prevent the operation of a parallel legal system by outlawing any person, such as a Sharia ‘judge’, falsely claiming legal jurisdiction.

Background

Arbitration and Mediation

Pressure on the UK court system has increased the use of alternative methods of resolving disputes, such as arbitration and mediation.

• Arbitration is where two or more parties agree an independent person who will decide their dispute, with a decision which is usually final and binding, and can be enforced by the UK courts under the Arbitration Act 1996.

• Mediation involves a neutral facilitator trying to help two or more parties to a dispute reach common ground – a mutually satisfactory agreement. In mediation, the third party does not decide the matter, but helps the parties settle their dispute between themselves.

The Arbitration Act 1996 allows parties to agree how civil disputes should be resolved, including choosing to resolve disputes according to the law of another legal system. This legitimately permits arbitration to operate according to Sharia principles.

Arbitration tribunals therefore allow parties to settle certain civil disputes (often financial) according to Sharia law in such a way that the decision can be enforced in UK courts.

The bodies which are commonly referred to as ‘Sharia courts’ or ‘Sharia councils’ appear to operate in a number of guises. Some fall within the arbitration framework, able to make legally binding decisions in legitimate arbitration proceedings.[2] Others are constituted as arbitration tribunals but operate outside their legitimate scope. Still others have little or no legal status, but operate within particular communities as if they had the power to make authoritative binding rulings. Sometimes the Arbitration Act is used to support this claim. 

Sharia law

Sharia law is generally held to derive from four sources: the Qur’an, the Sunna (sayings and doings of the Prophet), consensus (of the community), and analogical reasoning. It traditionally encompasses the full range of human behaviour, including: worship; dietary regulations; bodily matters and clothing; as well as criminal matters; business affairs; family law and international law.

Rulings on prayer, fasting, the payment of alms to the poor and related religious duties are, by their very nature, uncontroversial.[3] Yet concerns remain about the extent to which other aspects of Sharia law are causing great suffering to many Muslim women in Britain today.

Issues to be addressed

The problem of ‘courts’ that are not courts

Sharia principles are being applied in at least three forums which are of concern:

1. Arbitration tribunals applying discriminatory rules

In theory, arbitration based on Sharia law should be well regulated, because it takes place under the Arbitration Act. The Muslim Arbitration Tribunal (MAT) – the highest profile of the Sharia forums operating under the Arbitration Act – always has a barrister or solicitor of England and Wales sitting as part of the tribunal, which will also include a “Scholar of Islamic Sacred Law”.[4]

However, there is evidence that even when these tribunals are operating legitimately, some may be embedding discrimination against women. For example, a MAT in Nuneaton adjudicated on an inheritance dispute between three sisters and two brothers. In accordance with Sharia law principles, the men were given double the inheritance of the women.[5]

More recently, a Midlands-based imam has reportedly stated: “We are very happy to give the woman half and the man double because I think this is a very fair way of dealing with the situation”.[6]

It is a matter of serious concern that these kinds of discriminatory principles are being systematically applied in a way which conflicts with the fundamental principle of gender equality.

The freedom to decide disputes in accordance with religious beliefs is something that must be vigorously protected. If a woman genuinely and voluntarily accepts a discriminatory judgement with full knowledge of alternatives available in civil law, then she has the right to do so. But when discriminatory decisions are validated by the force of the law, particularly where women may be unaware of the implications or alternatives, or pressured into accepting the rulings, then the law itself is brought into disrepute.

2. Arbitration tribunals acting outside their remit

Provided faith groups operate within the civil law, they should be free to seek to resolve their disputes within the framework of their religion. However, there have been reports of so-called arbitration tribunals adjudicating on matters well outside the scope of the Arbitration Act, for example by deciding cases relating to the criminal law, such as those involving domestic violence and grievous bodily harm.

One MAT has admitted to overseeing six cases of domestic violence, apparently working ‘in tandem’ with police investigations. In each case the women who had been abused withdrew their complaints to the police, while the MAT judges suggested that the husbands take anger-management classes and advice from Muslim elders, with no further punishment for the men involved.[7]

The Sunday Times reported in 2008 that Sheikh Faiz-ul-Aqtab Siddiqi, chairman of the governing council of the MAT, said he “expected the tribunals to handle a greater number of ‘smaller’ criminal cases in coming years as more Muslim clients approach them”.[8] There are clear suggestions that the MAT, despite recognising on its website that it does not have jurisdiction to deal with criminal offences, may be exceeding its remit in such cases in the name of “reconciliation”[9] or “regulating community affairs”.[10]

3. Sharia councils, mosques and community elders

The third forum of concern includes all other ‘Sharia courts’. It has been estimated there are “at least” 85 Sharia courts or councils in the UK.[11]

Around a dozen of these are headed by the Islamic Sharia Council, which has been operating in this way since 1982. The council’s own website claims to have dealt with thousands of cases, mostly relating to matrimonial disputes.[12] As will be seen, there is evidence that many of these matrimonial disputes relate to couples who had a Muslim marriage, but are regarded as cohabiting under English law since no lawful marriage has been contracted.

In April 2013, a BBC Panorama investigation uncovered evidence of Sharia councils in Britain putting Muslim women ‘at risk’ by pressuring them to stay in abusive marriages. The programme showed an Islamic scholar at Leyton Islamic Sharia Council telling an undercover reporter to only report domestic abuse to the police as a “last resort”.[13] When the footage was shown to Nazir Afzal, the then chief crown prosecutor for the North West and himself a Muslim, he said: “I’m disappointed but not surprised. Most of them [Sharia councils] are fine but there are some clearly like this who are putting women at risk.”[14]

In July 2016, BBC 2’s Victoria Derbyshire Programme reported on the case of a Muslim woman who was physically abused by her husband. During a Sharia council hearing, an Islamic scholar asks: "Is it not possible to forget all the things he has done to you?"[15]

Legal scholar Machteld Zee recently attended 15 hours of hearings at the Leyton Islamic Sharia Council and the Birmingham Central Mosque.[16] According to her research: 

• A woman who claimed to be married to a physically and verbally abusive man is told by a “laughing” judge: “Why did you marry such a person?”
• A woman “ready to burst into tears” is sent away without an answer after saying that her husband took out a loan in her name on the day they married and is denying her a divorce until she gives him £10,000.
• A married couple asking for advice on whether the woman had been religiously divorced from her former husband were told “the secular divorce counts as nothing”.

Most of the remaining Sharia forums are understood to be operating out of mosques around the country,[17] or through other arrangements, such as meetings of community elders, which are being presented within particular communities as making authoritative and legally binding rulings. British Indian author and journalist Edna Fernandes, after her own investigation, concluded: “Scores more imams dispense justice through their own mosques” and “sharia is being used informally within the Muslim community to tackle crime such as gang fights or stabbings, bypassing police and the British court system”.[18]

The problem of intimidation

At the heart of both arbitration and mediation is the crucial matter of consent. In arbitration, both parties agree to submit their dispute to a mutually agreeable third party for a decision to be made. In mediation, the two parties are voluntarily using a third party to help them to reach an agreement which is acceptable to both sides.

However, there are widespread concerns regarding the nature of consent given prior to Sharia council hearings:

• Women may be pressured by their families into going to these courts and may lack knowledge of both the English language and their rights under British law;[19]
• Refusal to settle a dispute in a Sharia forum could lead to threats and intimidation, or being ostracised and labelled a disbeliever;[20]
• Going to the police or non-Muslim professional and legal sources can be considered culturally unacceptable or ‘shameful’ for the family and/or community;[21]
• Fatwas (a Sharia legal judgement or legal opinion) have been issued which claim that Sharia law takes priority over secular law.[22] A recent ComRes poll found that six per cent of British Muslims do not think that “Muslims in Britain should always obey British laws”.[23] Likewise, an ICM poll found that seven per cent of British Muslims “strongly support” the introduction of Sharia law in some areas.[24] Some may therefore not even want to involve secular authorities.

There is a particular concern that women who have made allegations of domestic violence subsequently face pressure to withdraw them. Several women's groups say they are often reluctant to go to the authorities with women who have run away to escape violence because they cannot trust police officers within the community not to betray the girls to their abusing families.

An associated concern, highlighted in a study entitled Britain’s Forgotten Women, describes the absence of professional support experienced by survivors of abuse:

“Survivors reported feeling let down by professionals in social services and schools due to their failure in identifying risk or intervening in cases of forced marriage and ‘honour’-based abuse. Some survivors who spoke out to social workers and police officers whilst still living at home reported being met with a lack of knowledge and understanding and felt as if their stories were not believed. This deterred some survivors from reaching out for help in the future, instead remaining in abusive situations.”[25]

There have even been reports of the police directly referring victims of domestic abuse to Sharia councils.[26]

What has been reported in the press or in academic studies is likely to be the tip of the iceberg. The very nature of the problem means that it is difficult to provide evidence of its scale. Many women who would be able to testify about their experiences are too afraid to identify themselves, often intimidated by their family or community with threats of punishment as they are deemed to bring ‘shame’ on their family and/or community.

The problem of ‘marriages’ that are not marriages

Most ‘Sharia courts’, when dealing with divorce, are doing so purely in a religious sense. They cannot claim to be a civil court able to grant civil divorce; they are simply granting a religious divorce in accordance with Sharia law.

In many cases this is all that is necessary for a ‘divorce’ anyway – although a religious wedding ceremony has taken place, the marriage has never been registered under the law here and is therefore not valid in the eyes of the civil law.

Of course people are entirely free to ‘marry’ purely in a religious sense, and not to register their marriage under English law. However, it is important for people doing so to be aware of the legal vulnerabilities of this arrangement.

Women who are married in Islamic ceremonies but are not officially married under English law can suffer grave disadvantages because they lack legal protection. What is more, they can be unaware that their marriage is not officially recognised by English law.

The situation was highlighted in a report by the Muslim women’s rights organisation Aurat: Supporting Women, which also highlighted cases of women in Britain living in polygamous marriages. The evidence for its findings was drawn from 50 case studies of Muslim women living in the West Midlands:[27]

• Around 90 per cent of those who identified as being ‘married’ were not in marriages legally recognised by English law. Of these women, over half were not aware that they do not have the same rights as they would have with a civil marriage.
• Some of the women interviewed assumed that, because the Nikah (Islamic wedding ceremony) had taken place in the UK, it automatically counted as a valid marriage.
• Two-thirds of those who identified as being married said their ‘husband’ has more than one ‘wife’.
• In many Islamic traditions, a husband does not have to undertake the same process as the wife when seeking a Talaq (Islamic divorce). He merely has to say “I divorce you” three times, whereas the wife must meet various conditions and pay a fee.
• Some of the women interviewed, when speaking of their own Talaq proceedings, specifically referred to their lack of legal protection after discovering that their Nikah did not constitute a valid marriage under English law.
• Many women also emphasised that they wished they had been made aware of the reality of their situation – that an Islamic marriage is not valid in the eyes of the civil law.

The report’s findings are all the more alarming when it is considered that as many as 100,000 couples in Britain are estimated to be living in Islamic marriages not recognised by English law.[28]

As recently as November 2013, the Government rejected my amendment to the Anti-social Behaviour, Crime and Policing Bill, which would have made it a legal requirement for the celebrant of any religious marriage which does not simultaneously provide for a legally registered marriage, to ensure that both parties to the marriage are aware of the implications of not having a legally-registered marriage. The purpose of the amendment was (I would have thought, irresistible!) to protect women who wrongly believe that their religious marriage means they are married under the law of the land, only to find upon divorce they have few to no rights in terms of finance or property.[29]

Case studies: Sharia councils

In 2012, evidence published in support of the Arbitration and Mediation Services (Equality) Bill included testimonies of Muslim women who have themselves suffered under the current provisions.[30] Below are extracts from four of those affected:

1. Following a forced marriage, Sara applied to a Sharia council for an Islamic divorce. Despite gaining a civil divorce through the British courts, she was, in her words, “pressurised” by the council to return to her ‘husband’.

“The Sharia council ‘judges’ did not listen to a word I had to say. They did not look at me when they were talking to me, rather they would look at the floor. It was awful. I felt like a second class citizen.”

2. Miri’s family discovered that she was a victim of domestic violence at the hands of her husband. She was encouraged to leave the marriage and rebuild her life.

“The Sharia council had sent my husband three letters with no reply. This, in my eyes, should have been enough for a divorce but not for them. Even after the last letter they said they had to give him a three month cooling off period to comply or respond.

“Then I was sent a letter to say that I had to give him full access or, if not, hand over my children for him to raise!!!! This was the ultimate blow for me as I felt I had been waiting all this time only to be told that my children will be taken away from me and my family.

“I thought my life had ended and I was thrown into deep water and there was no way out. I was told that if I didn’t accept this then my divorce could not go ahead.”

3. Sania was subjected to rape by her husband. The UK courts made a number of orders to protect her. However, a Sharia council refused to grant an Islamic divorce.

“Despite my protests, the Sharia council arranged a form of mediation for [my husband and I] to attend. I did not attend. The Sharia council refused to accept the fact that I was in fear of my life as a justification for not attending the mediation. I asked whether it would be possible for someone to come to my house. They said, no.

“The Sharia council then insisted that I brought along two Muslim witnesses to attend the Sharia council with me to confirm that I was telling the truth. However, [my husband] did not require any witnesses because he is a man. I did not know any Muslim women who could be witnesses and I didn’t want to get anyone from my community involved.”

4. Sami was born in the Middle East and now lives in the UK.

“Like me, many Muslim women are asylum seekers. They have fled their home country to live a safe life, they are running away from oppression and persecution that they suffered in their home country. They should not arrive in the UK to be met with further oppression through the operation of Sharia law.”

Case studies: other relevant issues

Visa Brides

A consultant gynaecologist has described a request from a 63-year-old man for a repair of the hymen of his 23-year-old wife. The gynaecologist refused as this is an illegal operation, whereupon the man became intensely angry, claiming that doctors in his town, not far from London, frequently undertake this operation under another name.

He wanted this surgical procedure for his wife in order to take her back to their country of origin to marry another man. Her next husband could then obtain a visa to enter the UK. He might subsequently abuse and then divorce his wife and marry another or more wives here. The man who asked for this operation said that he earned about £10,000 for effecting this arrangement.

Halala

One courageous woman, Roma, presented her evidence to the All-Party Parliamentary Group on “Honour” Based Abuse. She referred to the process of halala, whereby a husband divorces his wife, possibly by saying “I divorce you” three times. If he wishes to remarry (usually the wife has no other option) she must first marry another man, have that marriage consummated, and undergo another divorce; only then can she remarry her original husband. Roma said that some husbands do this just to taunt their wives; she also said that it is disturbingly frequent in this country.

Roma was physically abused by her husband, an overseas Pakistani student, but was so in fear of being rejected by her community that she did everything possible to avoid a divorce. However, when her husband could not obtain a visa, he sent Roma an Islamic divorce by post. She showed us a plain piece of paper with the words “I divorce you” three times. To use her words: “I felt betrayed by democracy and that plain piece of paper was a mockery of my human rights”.

Conclusion

The problems outlined in this submission highlight contemporary threats to one fundamental principle: equality for all under a single law of the land. In a number of ways, the operation of Sharia law in the UK today is undermining this principle. Urgent action is required. The rights of Muslim women, and the rule of One Law for All, must be upheld.

The Arbitration and Mediation Services (Equality) Bill is a step in the right direction. It is not the whole solution, but it does offer an important opportunity for some redress. It does so, principally, by trying to ensure that Muslim women are protected from discrimination and intimidation, and that any attempts by individuals or organisations to establish a parallel legal jurisdiction are prosecuted as unlawful.

While I broadly commend the Government’s inquiry into the operation of Sharia councils, significant concerns have been raised about the terms of reference – not least the emphasis being placed on the application of Sharia law, as opposed to its nature and content.[31] Bishop Michael Nazir-Ali, when speaking to this specific concern, suggested the review must investigate whether Sharia law is compatible with British law. There may be a risk that the recommendations could include legitimising aspects of Sharia law as a parallel legal system in the UK. He also questioned why the panel does not include non-Muslim experts on Islam, nor human rights experts.[32]

I have been told by Muslim women that the Government’s inquiry is being treated with derision, with some community leaders saying: “We will just go underground – and continue as before”. It is therefore crucial that the review panel specifies exactly how they intend to ascertain and monitor the practices of closed communities.

Until viable legislation is implemented, undertakings such as the Government review will provide little practical help to those who currently suffer in ways which should be utterly unacceptable in our democracy.

Moreover, it is very important that investigations are not used as excuses for delaying sympathetic consideration of the provisions of my Private Member’s Bill. These provisions have the strong support of many Muslim women as they are deemed to offer significant help in addressing some of the problems which are causing such suffering to so many women in their communities. It would be inexcusable for the Government to delay implementing these provisions until their inquiry has completed its work, their report has been written and the findings discussed.

These women are suffering now in ways which would make the Suffragettes turn in their graves. Measures to alleviate at least some of their problems are long overdue and require urgent implementation.

Baroness Cox

July 2016

APPENDIX OF RESOURCES

• Banaz: A Love Story (2012) see http://fuuse.net/banaz-a-love-story/

• The Imam's Daughter (2010) by Hannah Shah

• Choosing Sharia: Multiculturalism, Islamic Fundamentalism and Sharia Councils (2016) Machteld Zee

• Women and Shari'a Law: The Impact of Legal Pluralism in the UK (2016) by Elham Manea

• Sharia Law or ‘One Law For All?’ (2009) by Denis MacEoin

• Equal and Free? 50 Muslim Women’s Experiences of Marriage in Britain Today (2014) by Habiba Jaan

• Comparisons between Sharia courts and the Beth Din (2015) by Yisroel Greenberg

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