Written evidence submitted by Professor Ralph Grillo

A.     Personal Note

I am a professional social anthropologist, now retired, teaching at the University of Sussex since 1970. My principal interests are migration and ethnicity, and I have undertaken fieldwork in East Africa, France, Italy and the UK, in the last 20 years focusing on the governance of diversity in Europe. I have authored six monographs and edited/co-edited a dozen collections of essays or journal special issues. At Sussex I was Dean of the then School of African and Asian Studies, and Director of the Research Centre for Culture, Development and the Environment. Not an expert on Islam or Shari’a, I have described and analysed how the practices of minority families, notably those of Islamic faith, are the subject of extensive and intensive legal and political scrutiny in Muslim Families, Politics and the Law: A Legal Industry in Multicultural Britain (2015).

B.     Summary

• Minorities in Britain have been under continuous scrutiny since the 1960s. That scrutiny has increasingly focused on Muslims and Muslim family practices at a time when Islam has been seen as an ‘existential threat’ to Western societies, cultures and values, with growing criticism of, and hostility towards, Muslim institutions. Whether this represents ‘Islamophobia’ is much debated.
• While a simplistic Huntington-like vision of a ‘clash of civilisations’ must be rejected, there is nonetheless presently what may be called a ‘crisis of difference’ in which contrasting beliefs about what constitutes the good life and how to live it are at stake. This is where Shari’a comes in.
• Shari’a’s ontological status and how it is to be interpreted has been much disputed. The Committee might consider whether it is able to ‘enter the religious thicket’ and take a view on such controversies.
• Shari’a councils (NB NOT ‘courts’) have existed in Britain since the early 1980s, but raised little concern until the mid-2000s. There is now a substantial literature, much of it polemical and controversial, and based on limited evidence. A careful reading is needed to sort wheat from chaff.
• Academic surveys of the councils show they are principally concerned with religious, not civil, divorce, and that their rulings are important for devout Muslims, especially women.
• The criticism that the councils discriminate against women is the basis of Baroness Cox’s Arbitration and Mediation Services (Equality) Bill [HL]. The Committee will wish to take a view on the appropriateness of the (criminalisation) measures envisaged in the Bill, and on the evidence on which they are based, and whether those measures could/should be applied to bodies, such as the Beth Din.
• A key question: Do Shari’a councils and similar bodies cross a legal boundary, however inappropriate their practices might seem to some non-Muslim observers (and indeed some Muslims or Jews)?
• Many Muslims engage with the same issues (e.g. about divorce) which concern other observers. Some are ‘critical friends’ of the Shari’a councils,  recognising their importance for devout Muslims, but acknowledging the need for reform, to make them more ‘user friendly’ for women (Maleiha Malik).  Initiatives such as ‘roundtables’ bringing together Muslims and non-Muslims to discuss matters of mutual concern deserve support if the ‘negotiated order’ of British multiculturalism is to prevail
• It is not clear why the Home Affairs Committee decided to undertake this review given that the then Home Secretary recently appointed a panel (the Siddiqui Panel) with a similar brief.
• Annex: Select Bibliography.
  

C.     Background

1. Minorities in Britain have been subject to close scrutiny continuously since the 1960s. In a recent survey I identified well over a thousand official and unofficial interventions in public debates about minorities by government ministries and other public bodies, and by NGOs, pronouncing directly or indirectly on diversity and its governance.[1] Key themes have included: Inequality-discrimination; Identity-difference; Integration-cohesion; Extremism-radicalisation-security; Britishness and British values; and ‘Faith’.

2. Changes in the terms of reference of these interventions are often revealed in their titles. The inequality-discrimination agenda was especially influential in the early years, and perhaps reached its apogee in the Parekh Report in 2000, though Parekh was also concerned with identity-difference. Shortly afterwards, however, the northern cities of England experienced a wave of disturbances seen as deeply threatening. One response was the Cantle Report on Community Cohesion which recorded that many communities ‘operate on the basis of a series of parallel lives’, a phrase (originating in Germany) that achieved wide currency and led to one senior commentator asserting that Britain was ‘sleepwalking to segregation’.

3. Following the events of 7/7, however, worries about integration and cohesion became increasingly bound up with concerns about extremism and radicalisation, as in the PREVENT strategy. When the then Home Secretary first announced a review of Shari’a councils (in 2015) it was among measures to counter extremism and radicalisation, as if the councils were part and parcel of the same problem.

4. During the 2000s the overriding narrative became diversity has increased, is increasing, and ought to be diminished, with multiculturalism held responsible for all manner of things: ‘parallel lives’, ghettoisation, radicalisation of young people, unfair access to resources, and so on, issues readily taken up by right-wing populist, anti-immigrant parties.

5. David Cameron’s 2011 speech[2] which addressed some of these issues also drew on concerns about whether minorities’ beliefs and practices contravened or opposed British values, defined by Tony Blair[3] as ‘belief in democracy, the rule of law, tolerance, equal treatment for all, respect for this country and its shared heritage’. This became the mantra of governments of all political persuasion with ‘extremism’ officially defined as ‘vocal or active opposition’ to these values.

6. In this period Islam came to be seen as an ‘existential threat’ to Western cultures and values, with growing criticism of, and hostility to, Muslims and Muslim institutions. Whether it is appropriate to apply the term ‘Islamophobia’ to that hostility is much debated. Such accusations are bitterly contested by critics as intended to close down debate, and inhibit legitimate criticism of a religio-political ideology, and the patriarchal and conservative authorities who uphold it. Nonetheless, when criticism emphasises a supposed gap between modernity and tradition, West and East, it assumes an ideological high ground reminiscent of colonialism and the civilising mission. Criticism may also slide into outright hostility towards believers, accompanied by a determination to restrict their practices, e.g. limiting the building of mosques (or synagogues), and public displays of religiosity such as wearing a face-veil, restrictions which might otherwise be considered intolerable in a liberal democratic society. And criticism may approach racism because of a demographic association between Islam and its adherents who in the UK are in majority people with roots in Asia or Africa; if Islamophobia is not ‘racism’ it may bear a strong family resemblance to it.

D.     Shari’a

7. While simplistic Huntington-like visions of a ‘clash of civilisations’ must be rejected, there is nonetheless presently what may be called a ‘crisis of difference’  in which contrasting beliefs about what constitutes the good life and how to live it are at stake. This is where Shari’a comes in.

8. Shari’a is a body of doctrine and practice whose nature, its ontological status, how it is to be interpreted, whether it is suited for application in contemporary societies (wholly or in part), and its compatibility with Western values, are all much disputed. There is, however, a spectrum of belief about Shari’a (among Muslims), from those who wish no truck with it, to others who insist on a fixed and universal Shari’a, including the hudud laws, with no compromise, with wide varieties of opinion ‘in the middle’.

9. The Committee may wish to consider whether it is able to take a view on this internal Muslim debate, and ‘enter the religious thicket’. There is a chain of legal decisions in England, Canada and the USA which defer to an individual’s subjective understanding of their religion, and decline to pronounce on its truth or veracity, though the French parliamentary inquiry on the face-veil took a different point of view.

E.     Shari’a Councils

10. Shari’a councils (NB NOT ‘courts’; councils themselves avoid the term) have existed in Britain since the early 1980s; in large part they arose as a response to social, cultural and demographic developments in the UK’s South Asian population. (The transnationalisation of relations also played some part in this). They were little noticed and raised little concern until the mid-2000s, notably in connection with the activities of the Muslim Arbitration Tribunal, based in Nuneaton, and the then Archbishop of Canterbury’s 2008 lecture[4] (and subsequent intervention by Lord Nicholas Phillips[5]). It is not known how many there are. The frequently quoted figure of ‘85’ is a guess based on insubstantial evidence.

11. The first serious study was published in 2001, but there is now a large literature, some of it highly polemical and controversial.[6] It includes detailed, long-term investigations by academic social scientists and lawyers (e.g. Samia Bano, John Bowen, Gillian Douglas, Robin Griffith-Jones, Maleiha Malik), influential pamphlets by advocacy groups, mostly opposed to the councils (e.g. Civitas, One Law For All, Equal and Free, Aurat, ShariaWatch), several TV programmes (e.g. Panorama 2013), and many newspaper articles, often of the ‘Now It Can Be Revealed’ genre. There is a more limited defensive literature published by council members themselves (e.g. by Khola Hasan of the Islamic Shari’a Council in Leyton). Careful scrutiny of the evidence on which these books and articles are based, and the (ideological) viewpoint or value system they represent, is needed to sort the wheat from the chaff.

12. The principal councils (Islamic Shari’a Council, Muslim Law (Sharia) Council (UK), Shariah Council of the Birmingham Central Mosque, Muslim Arbitration Tribunal) are highly organised with websites describing what they do and how they proceed. In the case of divorce applications (see below) there are forms to fill in, fees to be paid, meetings to be attended, and extensive written rules of procedure. Indeed, council members sometimes complain they are being pushed internally and externally towards bureaucratisation and transparency, especially if they want their proceedings to be acceptable in the eyes of the law. That very professionalism, however, may make them seem ‘dangerous and chilling’, as one critic has put it.

13. Academic surveys of Shari’a councils (and their actual practices) show that they are principally concerned with advising on Islamically appropriate practices around marriage, but also offer guidance on the religious propriety of issues ranging from intravenous fertilization to trading in shares. At the same time, they claim to avoid recommendations which might bring them into conflict with the civil courts over such matters as the custody of children.

14. A major task of the councils, however, indeed their raison d’être, relates to applications for a religious (not civil) divorce principally on the part of women, which would confirm their status as devout Muslims and enable them to remarry. As Douglas et al put it: ‘Being able to remarry within the faith serves both to enable adherents to retain their standing within their faith community and to regularize their position with the religious authorities’ (2013).

15. This desire to maintain good standing in relation to their faith is as important for devout Muslims as it is for devout Catholics, Jews, or members of the Church of England. All these faiths have specific rules, regulations and procedures relating to marriage and divorce which non-adherents may find unacceptable, even outrageous. The Catholic Church’s position on divorce is the central theme of Evelyn Waugh’s novel Brideshead Revisited, and there is a substantial literature on the Jewish get, the divorce document which must be ceremonially presented by a husband to his wife, and the role of the Beth Din in that ceremony.[7]

16. A major criticism of the councils is that Shari’a law (and council practices) discriminate against women. This was the theme of an undercover report by the BBC programme Panorama in 2013. The anthropologist John Bowen responded in the Guardian (26 April 2013):

‘Do the councils discriminate against women? Well, the major monotheisms do discriminate against women, each in its own way. Muslim men and women have unequal divorce powers: a man can divorce his wife without her consent, whereas a woman needs to either persuade him to do so or to ask a judge or, in lands without Islamic judges, a sharia council, to end the marriage. That is why the councils exist ... and why women are their major clients. We might deplore this inequality in Islam, and also deplore inequality in orthodox Judaism - where women are more dependent on men to release them from marriage than are their Muslim sisters - and in the different strains of Christianity. But the sharia councils did not create this particular divorce inequality; they are a response to it.’[8]

17.                                                                                                  Bowen added that some councillors were ‘out of touch with gender roles in the UK’, but that ‘as a new generation, including more women, takes on these roles, the tone of council sessions will change as well. Indeed, it is already happening’. His article provoked over 400, mostly hostile, comments, but he was right to refer to the new, up-coming generation, including women now taking an active role in the work of the councils (e.g. in London and Birmingham), and the Committee will wish to consider how they might be supported.

18.                                                                                                  There are in fact various modes of divorce in Islam, and with one, talaq-e-tafweez, a wife may acquire the right to divorce her husband unilaterally. This provision may be agreed in the nikahnamah, marriage contract. (See inter alia the Pakistan Muslim Family Laws Ordinance 1961). A model marriage contract, drawn up and advocated by the Muslim Parliament of Great Britain, actually stipulates this.[9]

F.      Baroness Cox’s Bill

19. Whether or not the doctrines which give rise to the Shari’a councils (or similar bodies such as the Beth Din), and the procedures they follow, are found unacceptable or abhorrent by non-adherents, or indeed by some Muslims, Jews, or Catholics themselves, do they actually cross a legal boundary and thus fall foul of existing legislation, or should legislation be introduced to penalise them?

20. This is the question posed by Baroness Caroline Cox’s Arbitration and Mediation Services (Equality) Bill [HL] which she first introduced in the Lords in 2011, and which eventually reached the Commons in 2016, but failed to get beyond the first reading. It has been re-introduced in the Lords for 2016-17.[10]

21. The Bill has support from a wide variety of groups and individuals: Christians, secularists such as the One Law for All Campaign and the National Secular Society, the radical feminist group, the Southall Black Sisters, the United Kingdom Independence Party, the English Defence League, and centre-right think tanks. These are groups from across the political spectrum who otherwise would not be seen talking to each other, ‘problematic allies’, someone called them. (Something similar may be observed in campaigns to ban the face-veil in Belgium and France).

22. In the light of the evidence it receives and reviews, the Committee might wish to take a position on the appropriateness of the (criminalisation) measures envisaged in the Bill and on the evidence on which it is based, and consider whether those measures could/should be applied to bodies, such as the Beth Din.

G.     Reflections

23. Undeniably Muslim women, among most others, suffer discrimination, but it is an error to exceptionalise their situation. And treating Muslim women as always already victims, as in much of the advocacy and polemical literature on Shari’a councils, does injustice to their agency. Equally, it cannot be denied that there have to be limits though with respect to Islam, there have been calls for limits which are sometimes tantamount to demanding Muslims cease to be Muslim if they are to remain in Britain.

24. How limits are to be determined and imposed are  difficult questions for contemporary democracies, but in considering what to do about difference (and whether criminalisation is the answer) it is imperative to clarify exactly what is at stake, and recognise the underlying social and cultural dynamics. Opposition to Islamic practice is often based on misinformation, misunderstanding, misreading what happens and why.

25. Many Muslims are engaging with the same issues (e.g. about divorce) which concern other observers. Some are ‘critical friends’ of the Shari’a councils,  recognising their importance for devout Muslims, but acknowledging the need for reform, to make them more ‘user friendly’ for women (Maleiha Malik[11]). Initiatives such as the ‘road shows’  organised by a prominent Muslim solicitor to promote civil registration of marriages[12], and ‘roundtable’ discussions involving legal and religious experts (Muslim and non-Muslim) show there is a middle ground which needs support. Dialogue and negotiation have long characterised the ‘negotiated order’ of British multiculturalism, one hopes this continues to be possible.

26. It is not clear why the Committee is undertaking this review given the brief of the recently appointed Siddiqui panel. How the Committee positions itself in relation to the Siddiqui Panel (and vice versa) will be of considerable interest. (Opponents of Shari’a councils have already launched a pre-emptive critique of the Panel’s findings, and questioned the new Prime Minister’s anti-Shari’a credentials.[13])
    

Annex: Select Bibliography

Ahdar, R.J. & N. Aroney (eds.) 2010. Shari’a in the West. Oxford: Oxford University Press.

Bano, S. 2012a. Muslim Women and Shari’ah Councils: Transcending the Boundaries of Community and Law. London: Palgrave Macmillan.

—2012b. An Exploratory Study of Shariah Councils in England with Respect to Family Law. Reading: University of Reading, School of Law.

Bowen, J.R. 2009. Can Islam Be French? Pluralism and Pragmatism in a Secularist State. Princeton: Princeton University Press.

—2016. On British Islam: Religion, Law, and Everyday Practice in Shari’a Councils. Princeton: Princeton University Press.

Centre for Social Cohesion. 2009. The Beth Din: Jewish Law in the UK. London: CSC.

Douglas, G. et al. 2011. Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts. Cardiff: Cardiff Law School.

—2013. Accommodating Religious Divorce in the Secular State, in Managing Family Justice in Diverse Societies, eds. M. Maclean & J. Eekelaar. Oxford: Hart International Series in Law and Society.

Equal and Free? 2012. Equal and Free? Evidence in support of Baroness Cox’s Arbitration and Mediation Services (Equality) Bill (Researched and Drafted by Charlotte Rachael Proudman). London: Equal and Free.

Fournier, P. 2010. Muslim Marriage in Western Courts: Lost in Transplantation. Farnham: Ashgate.

Glazer, S. 2012. Sharia Controversy. CQ Global Researcher, 6(1), 1-28.

Greeenberg, Y. 2015. Comparisons Between Sharia Courts and the Beth Din. London: Equal and Free.

Green, D.G. (ed.) 2009. Sharia Law or “One Law for All”? London: Civitas.

Griffith-Jones, R. (ed.) 2013. Islam and English Law: Rights, Responsibilities and the Place of Shari’a. Cambridge: Cambridge University Press.

Grillo, R. 2015. Muslim Families, Politics and the Law: A Legal Industry in Multicultural Britain. Aldershot: Ashgate.

—et al (eds.) 2009. Legal Practice and Cultural Diversity. Aldershot: Ashgate.

Hasan, K. 2012. Response to Baroness Cox’s Arbitration and Mediation Bill. London: Islamic Shari’a Council.

Jaan, H. 2014. Equal and Free? 50 Muslim Women’s Experiences of Marriage in Britain Today. West Midlands: Aurat.

Keshavjee, M. 2013. Islam, Shari’a and Alternative Dispute Resolution. London: I.B. Tauris.

Korteweg, A. & J.A. Selby (eds.) 2012. Debating Sharia: Islam, Gender Politics, and Family Law Arbitration. Toronto: University of Toronto Press.

Malik, M. 2012. Minority Legal Orders in the UK. London: The British Academy.

Manea, E. 2016. Women and Shari’a Law: The Impact of Legal Pluralism in the UK. London: I.B. Tauris.

Murray, D. 2010. ‘Sharia a Threat to Britain’s Future as “Tolerant” Society’. Times Online, 11 January 2010.

Nielsen, J. 1999. Towards a European Islam. Basingstoke: Macmillan.

—and L. Christoffersen (eds.) 2010. Shari’a as Discourse: Legal Traditions and the Encounter with Europe. Farnham: Ashgate.

One Law for All. 2010. Sharia Law in Britain: A Threat to One Law for All & Equal Rights. London: One Law for All.

—2013. Sharia Law and Child Protection in Britain: The Failure of Multiculturalism. London: One Law for All.

Panorama 2013. ‘Secrets of Britain’s Sharia Councils’, BBC TV, broadcast April 2013.

Shah-Kazemi, S.N. 2001. Untying the Knot: Muslim Women, Divorce and the Shariah. London: Nuffield Foundation.

Waters, A.M. 2014. Sharia Law: Britain’s Blind Spot.  London: Sharia Watch UK.

Zee, M. 2016. Choosing Sharia The Hague: Eleven International Publishing.