Written evidence submitted by Averroes

 

I. Summary

  1. Averroes has a unique perspective owing to first-hand experience of working with sharia councils, expertise in Islamic law and theology and also advocating for improving and developing council practices at the grass roots level.

 

  1. It is often posited that sharia councils run parallel legal systems. However in actuality, and according to mainstream interpretations of the sharia, it is not the case. Whilst the sharia as practiced is the application of Islamic legal norms, there are major discrepancies between the sharia practiced as a body of religious moral norms and a judicial body through state structures.

 

  1. Hence our evidence asserts the following:

 

  1. A cursory analysis under Islamic law shows that the work of sharia councils is not deemed to be judicial or strictly legal, but rather social and informal.

 

  1. Resultantly councils do not exercise any binding force or authority over service users. They often acts as mediators and their views have the status of informal advisory opinions, followed at the volition of the service-users as a religious affirmation. Often they ignore the opinion and seek another council or none at all.

 

  1. The emergence of sharia councils in the UK reflects the need for religiously-based informal mediation services. Their informal nature is underlined by the lack of standardised qualifications required to be an arbiter as opposed to social and religious capital in the community.

 

  1. The bulk of service users happen to be women in difficult marriages. Councils lend religious authority to overcome the cultural taboo around divorce, while saving face and maintaining status within the community.

 

  1. Mishandling of cases is often down to the age and ethno-cultural limitations of some arbiters, who may not always refer purely to religious considerations nor take the modern British context fully into account. Cost and English language proficiency are also recurrent concerns. Despite this, the volume of negative experiences remains relatively low.

 

  1. Government’s role should be to better engage councils and assist and support them in developing better systems of organisations, transparency, better communication with each other and state departments. To instead opt for regulation and monitoring would only breed distrust and informal practices will continue even further from the public eye, thus increasing the likelihood of malpractice.

 

II. The role of ‘Sharia councils’ within Islamic law

  1. Within Islamic law, the judiciary is the system of courts that interprets and applies the law in the name of the state or sovereign, accompanied by a body to enforce rulings.

 

  1. Thus the qadi, or judge, is a position appointed by the state and whose authority the political leader mandates. Being appointed by the state requires that the judge must dispassionately fulfill his or her role, and reserves little right to arbitrarily choose which cases to hear.

 

  1. Functioning as the official court of a polity, legal verdicts or rulings are binding and enforceable with attendance at court mandatory, failure of which is considered contempt of court.

 

  1. Whilst official courts hold primacy over the law, there exist other legitimate means by which citizens remain at liberty to resolve personal disputes, processes referred to as tahkim, or arbitration.

 

  1. Disputing parties appoint the hakam, or arbiter, and in accordance with the values, norms and parameters they hold to be acceptable – consent is considered to be a key condition to the validity of any such undertaking. Women can be arbiters according to the vast majority of jurists across the schools of law.

 

  1. Given the social authority deferred to an arbiter - rather than a legal one - Islamic jurists have differed over the qualifications an arbiter is required to demonstrate so as to legitimately preside over a tribunal. One school holds that there are no formal qualifications since the arbitration is a form of wikalah, a term derived from tawkil, which denotes an act of appointing someone to take charge of a task or responsibility. The other schools, whilst maintaining that a hakam holds no authority, obligates the qualifications of a qadi, where religiously based arbitration is sought.

 

  1. Where disputants petition a hakam, Islamic law dictates that it be based on the consent of both parties since the arbiter holds no legal authority to compel attendance nor is any decision taken enforceable. It is the view of the majority schools of Islamic law that the implementation of any such decision is conducted by disputing parties who seek a resolution, and/or based on their consent.

 

  1. Additionally, the issues over which an arbiter may preside exclude various areas of law such as criminal law. It is the agreement of all schools of Islamic law that arbiters may preside, with the request of conflicting parties, over financial disputes including those concerning contractual obligations, and certain forms of tort.

 

  1. However there exists a difference of opinion with regards to the legitimacy of tahkim in cases of divorce (khula’) and separation (firaq), child custody, and parental tests and responsibilities. The difference of opinion exists due to the impact such decisions can have on wider public actors.

 

III.              Binding Nature and Authority

  1. The purpose of the above section is to provide a basis for clarifying confusion over the binding nature and authority of decisions of sharia councils within the religious tradition. While it appears to be understood by most that councils engage in consensual arbitration, references to ‘courts’ and ‘judges’ in media has led to worrisome levels of misinformation and the authority that councils may exert on community members.

 

  1. The reality of sharia councils is that the bulk of their casework relates to marriage and divorce, financial agreements, and mediation relating to them. Councils tend to be predominantly engaged in resolving marital disputes or assisting in absolving religious marriages. The only legally binding status attached to their deliberations is through the Arbitration Act 1996, and that only in relation to financial/contractual disputes that are then given evidential status in civil courts.

 

  1. Leaving civil law and courts aside, can we attach any binding nature to sharia council decisions at the social or community level? Even at this level, there is no such dimension. The councils are not formal nor hierarchical or interdependent. No one is compelled to attend them and no arbiter can enforce their views. Whilst there might be a handful of examples where members of a family exert pressure, in the majority of cases, Muslims merely engage councils’ religious juristic opinions for their own religious satisfaction and affirmation. When results are deemed unacceptable, they often seek out an alternative council.

 

  1. Sharia Councils in the UK
  1. Whilst there is a difference of Islamic opinion on the legitimacy of tahkim in cases of divorce (talaq) and separation (firaq), child custody, and parental tests and responsibilities, it is the view of nearly all Muslims who live as religious minorities that there be social provisions established by those qualified in Muslim communities to provide adequate religiously based arbitration for those who so desire.

 

  1. In this vein, it is well known that sharia councils hold no legal powers, but are sought out for sharia-based mediation and arbitration, which act as moral norms that disputants have consensually deferred to.

 

  1. There are various sharia councils across the UK representing numerous denominations and religious streams; decisions hold influence merely out of the moral and religious capital, granted by the disputants themselves.

 

  1. The interpretations of Islamic law vary from one council to another, and given the lack of uniformity amongst councils, the scholastic qualifications of arbiters are seldom a crucial point of consideration. Qualification is often presumed from the arbiter’s religious and social capital within a particular community, usually (but not in every circumstance) a community that self-identifies in ethnic terms. It is the position the arbiter plays within social structures within such communities that affords him or her legitimacy.

 

  1. Given that sharia bodies have no force of law (at state or community level) and merely act as an opt-in service, they tend to operate by means of negotiation between parties and a self-ascribed sense of moral duty.

 

  1. How do sharia councils benefit the Muslim community?
  1. Councils offer a consensual service to religious believers who seek out arbitration from those they deem qualified. They are accessible, provide a satisfactory service to the vast majority of service users, and offer a degree of transparency to the community.

 

  1. Sharia arbitration often provides relief for those women in difficult relationships, and given the taboo around divorce in many cultures, it allows for such women to seek legitimacy from a religious authority – often seen to transcend ethno-cultural norms - that grants legitimacy and maintains social status amongst peers.

 

  1. The majority of councils also offer mediation services that attempt to reconcile between disputants before the initiation of arbitration, thus reducing the prospects of social disharmony between members of the same community.

 

  1. Many councils offer secular-trained Muslim counselors who offer support and other services. They often signpost to other services offered by the state

 

  1. Councils also publicise the formal process of arbitration so as to restrict the prospect of arbitrary decision-making. Decisions are often made collectively at a weekly or monthly meeting.

 

  1. Why might problems arise?
  1. Some councils, having recognised demand, charge excessive fees which can be deemed exploitative by desperate service users. Given the need for cultural legitimacy, some find themselves having to pay what they feel to be unnecessary costs.

 

  1. Some of the religious interpretations applied within sharia councils tend to reflect foreign cultures since most arbiters are neither born and raised in Britain, nor significantly experience diverse cultures and norms. Thus the application of religious moral codes do not simply manifest as religious norms within the cultural context of Britain, but are often the wholesale importing of religious values embedded within foreign ethno-cultures. The generational shift between immigrants and their offspring that have grown up in the west has frequently led to cultural disparities between generations of British Muslims. Many service users are from second and third generations, who seek arbitration far more complementary to western norms.

 

  1. Thus it might be asserted that the age and lack of diversity of arbiters proves to be a major source of complacency by some service users, since they fail to understand newly developed habits and norms that are legitimate within the sharia, but go against their ethno-cultural norms, and who interpret religious law according to customs characteristic of cultures that fail to reflect the western sensibilities of Muslims.

 

  1. Averroes has found that cultural variance plays a greater role in disgruntling service users than gender differences. There are a number of problematic cases where a female arbiter/counselor has also been present in a session but concurred with a male arbiter. The common denominator is such cases tend to be age and culture.

 

  1. Some arbiters demonstrate the inability to speak English fluently and resultantly struggle to explain processes and decisions adequately. The lack of communication, or ignorance of cultural differences amongst Muslims, can lead to frustrations for a disputing party unable to understand the basis of a ‘decision’.

 

  1. However, we might note that service users can be left disgruntled for reasons beyond the practices and capabilities of arbiters and sharia councils. Some processes are deemed lengthy or time consuming, such as where a woman might petition the council to authorise the dissolution of a religious marital contract, which understandably requires the input of both parties. Some female service users will exhibit frustrations at not being issued the dissolution right away, that is without the husband being spoken to. Even where the council has explicitly publicised standard procedures of dissolution and approximated timelines.

 

  1. It might also be noted by the Select Committee that despite the highly politicised nature of sharia councils owing to wider political sentiment around the Muslim community, the number of complainants remain significantly low. Nearly all service users remain content with their experiences, even in those cases where expectations of outcomes are not met. Public attention has been drawn to a handful of cases from amongst tens of thousands across the country, and even in such unfortunate cases, councils have been put on trial in the court of public opinion, skewed by general media misrepresentations of Islam and British Muslims.

 

  1. How might the government get involved?
  1. The Muslim community is currently in a process of maturating its religious and cultural identity. The generational shift from immigrants who have made up the majority of adult Muslims to consequent generations born or raised in the UK has meant that we have seen unprecedented changes to religious understandings, as well as progressive steps towards religious practice complimentary to western lifestyles and norms.

 

  1. Any involvement of the state in such progression will inevitably lead to suspicion and feelings of mistrust, and as a result impede positive steps due to perceptions of being under attack, or deeming such intervention as a state-driven project to shape the religious identity of Muslim while not subjecting other religious groups to the same standards.

 

  1. Even those highly sympathetic to the cause of progression and development have previously under such circumstances (such as the Prevent and Counter-Extremism Strategy), exhibited a strong proclivity to cease dialogue and or demonstrate a willingness to drive social change, usually out of fear of being regarded as opportunists or ‘sellouts’.

 

  1. The idea that nothing is being done is a misnomer; given that sharia councils represent a social phenomenon, there are many British Muslims with the relevant credentials that are at the forefront of pushing for cultural reform within Muslim communities.

 

  1. Thus there are those doing something – amongst who are Islamic scholars from Averroes and its wider network. As members of British civil society, they engage and dialogue with those who drive understandings of sharia at a grassroots level, as well as highlighting malpractice and suggesting development. Given their legitimacy and social standing amongst British Muslims, they represent the most cogent and credible way to address bad practices at some councils.