Written evidence submitted by the National Secular Society

About the National Secular Society

1.      This submission is made by the National Secular Society (NSS). The NSS is a not-for-profit organisation founded in 1866, funded by its members and by donations. It campaigns for a diverse society where all are free to practise their faith, change it, or to have no faith at all. The NSS advocates separation of religion and state and promotes secularism as the best means of creating a society in which people of all religions or none can live together fairly and cohesively.

Summary

2.      The NSS seeks to promote and protect personal and religious freedoms; however, the increasing use of sharia as a system for alternative dispute resolution in the UK is an issue of concern to us. Sharia is a system which leaves children vulnerable and discriminates openly against women, undermining their legal and political equality. Sharia Councils have been shown to have acted in ways contrary to the law and leaving women vulnerable to domestic abuse. As such, we argue that the state needs to better tackle the numerous problems and dangers the use of sharia councils brings with it.

Sharia in the UK

3.      The exact number of sharia councils operating in the UK is disputed. Research from the University of Reading in 2012 identified 30 councils operating in England[1] but the study only considered “major” councils and acknowledged that “small” and “local” councils “had been missed”. It is our view that the smaller councils which exert a powerful local influence may be the most harmful to women. Civitas, in 2009, said there were “at least” 85 sharia councils in the UK.[2] It is our view that the number of sharia councils is likely to be higher than this, and that the exact figure may be practically impossible to determine. Two or three ‘judges’ convened in somebody’s private property dispensing ‘legal’ advice may describe themselves as a sharia council, and exert profound influence on their community. Yet the wider public and the state may have absolutely no knowledge of such an ‘institution’. The problems that emerge in identifying an exact number of sharia councils also reappear when possible remedies are considered below.

4.      Sharia is a system that has been described by Judges in the House of Lords as “arbitrary and discriminatory"[3] and it is undeniable that the primary sources from which sharia councils derive their rulings are innately discriminatory. We accept that some sharia councils and Muslim Arbitration Tribunals may operate in a way which is de facto non-discriminatory, but the body of jurisprudence sharia relies on makes assumptions which are, from the outset, discriminatory to women and it proceeds from that basis. Treating the testimony of a woman as less than that of a man or discriminating against women in inheritance are examples of this.

5.      Discrimination against women, and minorities within Muslim communities, is our primary concern – though not our only one.

6.      It is our view that the use and flourishing of sharia ‘courts’, whatever the exact number, poses a serious threat to common citizenship and the long-term integrity of secular law.

7.      Sharia councils, often described as ‘courts’, have no formal legal authority. But as Baroness Cox has said, “the power of Sharia councils lies in how they are perceived by their communities, allowing the creation of de facto legal structures”.[4] Sharia councils must never be permitted to present themselves as courts with any legal standing whatsoever. In isolated and even ghettoised Muslim communities, where English is not commonly spoken (especially by women)[5] the formal legal position is practically irrelevant. De factor authority resides in these ‘courts’ as soon as authority is believed to lie in them.

8.      Though that is the correct legal position, there are ways in which sharia might enter the UK legal system through the backdoor. While some sharia councils are little more than informal dispute resolution forums, sometimes in informal settings, others describe themselves as Muslim Arbitration Tribunals and claim to operate under the Arbitration Act. This opens the door to arbitration decisions being enforced by British courts, though we have not seen evidence of this occurring yet.

9.      The cultural supremacy of sharia law over UK law is most strongly felt in marriage and divorce. It is here that Muslim women are most acutely disadvantaged by sharia councils. A vast number of Muslim weddings in England and Wales take place with the religious Nikah ceremony and without a legally recognised marriage.

10.  Civil divorces, if there even is a civil marriage, may not to be recognised by fellow Muslims, so there is huge pressure to obtain a religious divorce, which can be hard or impossible, especially for women. This gives sharia councils an immense power over women applying for a divorce.

11.  There are documented cases of women being refused divorces by sharia councils even when men have been violent,[6] and custody of the children being determined on arbitrary religious criteria rather than the child’s best interests.

12.  In many instances women are actually sent back to controlling, violent and abusive husbands by sharia councils. Undercover filming has uncovered countless examples of this type of result. BBC Panorama for instance shot footage of an Islamic ‘scholar’ ordering children to be removed from their mother and placed in the custody of the “reportedly violent father”.[7]

13.  On the other hand, if a divorce is not sought by the woman, but imposed on her against her will by her husband, who may have other wives, a Muslim wife can be left destitute or even homeless. She may be under the impression that she has entered a legal marriage. In fact, she has no legal protection if the marriage is unrecognised.

14.  In case studies collected by the Aurat Foundation,[8] a group which supports Muslim women, many women spoken of serious harms caused by a sudden ‘divorce’ after the wrong presumption on their part that their marriage had some legal standing.

15.  One 18-year-old said: “I’m not too sure where I stand and what my legal rights are. I am scared if I ask questions what will happen. So I guess it’s best to stay quiet.”

16.  Another woman, Asifa, said: “When I was going through a divorce, I went to a lawyer who told me I had no legal rights as I’m seen as a girlfriend and not a wife. I just sat there in shock.”

17.  Another, Chandi, aged 43, said: “I wasn’t allowed to have anything when I got divorced. He kept everything, yet I paid for everything… When I found out I was not able to get anything for me and the kids, I was suicidal.”

18.  This is the product of the presentation of sharia councils as ‘courts’ with legal standing, reinforced by communal pressure on women, and vast cultural barriers which may include a lack of English language, ignorance about UK law and the presumption that a Nikah is a real marriage and that sharia courts or sharia law have some statutory footing.

19.  As long as sharia councils exist and unrecognised religious marriages are so common, Muslim women will continue to find themselves in this extremely precarious situation without legal protection.

20.  This brings us towards remedies for the obvious and demonstrated harms caused by the existence of sharia councils in the UK.

Remedies

21.  In order to address some of the issues the use of sharia as an arbitration and mediation mechanism in the UK has raised, Baroness Caroline Cox introduced into Parliament an Arbitration and Mediation Services (Equality) Bill[9]. Whilst not mentioning sharia specifically (and applying to all forms of arbitration), her bill sought to deal with concerns over the lack of equality for women, safety for witnesses, questions over the legitimacy of arbitration outcomes and the remit claimed by sharia Councils. It also sought to clarify that sex discrimination law applies to arbitration tribunal proceedings, in order that tribunals which operate legitimately under the Arbitration Act 1996 could not use discriminatory sharia rules (for example, a woman’s testimony being worth half that of a man’s)[10].

22.  the Government has argued that there is no need for the bill because the points the bill sought to legislate upon were already covered by existing law. Whilst it is true that some of the mechanisms the bill sought to introduce are potentially covered by UK law, it is clear that these laws are not being enacted sufficiently.

23.  Another possibility that merits further consideration is adopting legislation that would make the failure to grant a divorce unlawful marital captivity. Dutch laws now allow women whose husbands will not grant a religious divorce to pursue civil or criminal proceedings[11].

24.  The adverse effect on, especially women’s, rights of religious tribunals has led some provinces in Canada to proscribe them. This approach should not be ruled out. A commitment to religious liberty must be weighed against the need to protect those most vulnerable from the imposition of patriarchal religious law.

25.  As we have seen from the difficulty in simply establishing the number of these councils that exist, a ban would presumably create a duty on local authorities to identify premises operating as sharia councils so that they could be closed. From our experience of unregistered, illegal religious schools, we have little confidence that local authorities would work proactively to identify sharia courts were a ban to be implemented, given the immense sensitivity of such a task.[12] Local authorities have consistently failed to tackle much worse abuse in Muslim communities through misplaced deeply counter-productive and invidious political correctness.[13]

26.  In our estimation this option could shut down the least harmful councils (those inclined to acknowledge and obey the law) and leave untouched the ones that have no care for secular, UK law.

27.  These practical arguments are not in themselves an argument against a ban, and we would urge the Government and future governments to keep this option open and under review, despite the practical difficulties, but a ban is likely to be a token gesture, rather than a successful measure that would bring about an end to the proliferation of sharia courts. It may, one day, be a gesture that is required, but it should not be thought of as an immediate solution to the significant social problems caused by sharia courts.

28.  A ban would (in theory) tackle the supply of sharia courts. However, in our view the problem is not just one of supply, but fundamentally of demand. There is a clear appetite for sharia councils. While it is our view that these institutions discriminate against women and/or base their rulings on texts which are innately discriminatory, it is undeniable that many Muslim women and men wish to use sharia councils for purposes of arbitration.

29.  One way to tackle this demand is through the education system. Muslim women and girls must be educated in full knowledge of their legal and civil rights. Education about citizenship, civil rights and the state legal system should be at the heart of our approach to challenging the demand for sharia courts.

30.  But the active promotion of the principle of one law for all and common citizenship in the state education system can only go so far. The significant numbers of Muslim and Jewish children (in particular) who are disappearing from the education system leaves them in religious schools, potentially unregistered and illegal, without access to this curriculum. This speaks to the far more profound problems in our society and in community cohesion, described by Professor Ted Cantle as the living of “parallel lives”.[14]

31.  Though it is not currently our view that a ban would be effective, the growing religious orthodoxy of Islam across the world and extremely alarming, consistent polling on the attitudes of British Muslims, may mean that a blunter instrument, such as a ban, is required in future.

32.  It has been suggested that to mitigate the harms of sharia councils that they are brought into the legal system or recognised in some way, provided that they adhere to equality standards. This would be disastrous. It would further blur the line between the state legal system and informal arbitration. This would have terrible effects for Muslim women and it would afford councils even more credibility within Muslim communities. The legitimisation of sharia councils in this way would have little practical effect on the rulings of the ‘least bad’ councils but would, we believe, have a trickle-down effect conferring legitimacy on other sharia councils by legitimising sharia law itself. The Government cannot have a role overseeing sharia councils in this way.

33.  As we have said, the mere existence of sharia councils will create a pressure to use them. Any state legitimacy conferred on sharia councils will enhance this effect, while strengthening the most regressive voices within Muslim communities and silencing women and more secular opinions by making objections to sharia arbitration harder to sustain – because the state would have legitimised them.

34.  That is not the only objection to some kind of state oversight. Such a move to ‘localise’ the legal system to individual religious groups "strikes at the heart of meaningful citizenship," in the words of Dr Ronan McCrea, a Senior Lecturer in Law at UCL.

35.  Dr McCrea has written in Public Law[15] that “encouraging disengagement” from the legal system could lead to a “balkanised society”. As long as sharia councils exist, he writes, “members of religious minorities will have to endure "emotional and social costs which are not imposed on their fellow citizens" if they try to access secular courts.”

36.  There are no simple solutions to the problems posed by sharia courts. Education must be used to empower Muslim citizens and tackle demand, and councils that pose a physical danger to women and children must be closed immediately – sharia councils are not permitted currently to rule on child custody. Local authorities should therefore be exhorted by the Government and by parliament to become far more curious about what goes on at sharia councils and to identify councils which are, through custody ‘orders’, putting women and children at risk.

Summary of recommendations

37.  The legal system must not be undermined. Action must be taken to ensure that none of the councils currently in operation misrepresent themselves as sources of legal authority.

38.  Work should be undertaken by local authorities to identify sharia councils, and official figures should be made available to measure the extent of sharia councils’ influence in the UK.

39.  There needs to be a continuing review by the Government of the extent to which religious ‘law’, including religious marriage without civil marriage, is undermining human rights and/or becoming de facto law. The Government must be proactive in proposing solutions, e.g. making prior civil marriage a necessary precondition of holding Nikah ceremonies and exploring legal measures to prevent the unreasonable withholding of religious divorce.

40.  We believe that an information campaign is needed to reach out to women and inform them of their rights in law. All schools, both in the state and independent sector, should be under a duty to promote understanding of citizenship and legal rights under UK law so that people – particularly Muslim women and girls – are aware of and able to access their legal rights and do not regard religious ‘courts’ as sources of genuine legal authority. We also argue that there needs to be a strengthening of the obligations of public bodies to ensure that women are made aware of their legal rights and to clarify that discrimination law applies to arbitration.

41.  it is essential for the Government to clarify and determine that equality legislation applies comprehensively to the process of arbitration and mediation so that, for example, tribunals operating under the Arbitration Act 1996 could not use discriminatory sharia rules such as a woman’s testimony being worth half that of a man.

42.  We do not rule out the need future ban, and would certainly not campaign against one now. But a ban must not be seen as a ‘silver bullet’, it is not.