Before becoming the UK’s Prime Minister, Theresa May launched an independent review into the application of sharia law in England and Wales.
In this guest post, Olivia Percival explores what sharia law is and whether the existence of ‘minority legal orders’ in the UK jeopardises the UK’s human rights protections for their users.
What is Sharia law?
Sharia law, the religious law of the Islamic faith, can often be portrayed negatively in the media, and its application in the UK is a matter of some controversy. Its rules, which are drawn from various sources, including the Koran and the rulings of Islamic scholars, provide guidance to Muslims on every aspect of their lives.
Research suggests that there may be as many as 85 Sharia councils operating in the UK giving religious rulings mainly on family law matters such as divorce and child custody. Sharia Councils make decisions in accordance with religious principles, particularly in relation to family matters, but they are not courts and their decisions are not legally binding. Some bodies do, however, conduct legally binding arbitration using Sharia principles (more on that below).
Why is this important now?
In May 2016, then Home Secretary Theresa May launched an independent review into the application of Sharia Law in England and Wales. The purpose of the review is to assess whether Sharia law is being applied compatibly with English and Welsh law, and to examine whether it is being misused to discriminate against certain groups, particularly women.
The launch of the independent review shines a spotlight on a wider question about the existence of such “minority legal orders” in the UK, and what this means for human rights and the rule of law.
What is a ‘minority’ legal order?
A minority legal order is not, strictly speaking, a legal system running ‘in parallel’ with the established legal order. It does not take precedence over national law. Instead, it is a set of rules and principles which a particular community or religious group views, from its own perspective, as being “law” and chooses to follow.
In some cases, however, it may carry more weight amongst the members of that community than national law does.
Additionally, a decision given in such a forum may be legally binding if both parties agree to this. Arbitration, which is when people agree to have their disputes decided outside of court by a neutral third party, is an accepted way of resolving disputes under UK law, and British courts will usually enforce arbitration decisions. However, there are limits to this. For example, UK courts will not enforce an arbitration decision where to do so would be against the ‘public interest’.
Those arguing for religious court say that in an increasingly diverse society, principles of tolerance, religious freedom and respect for minorities call for the accommodation of some minority practices, including those which resemble a kind of “law”. In fact, in the UK, Jewish religious courts known as the Beth Din, have been resolving civil disputes for many years with very little attention from politicians or the media.
What does this mean for human rights and the rule of law?
The ‘rule of law’ is the principle that everyone is equal before the law: no one should be above, or indeed, below, the law. Where citizens are diverted away from the national legal system, towards minority legal orders, there is a risk that they no longer benefit from the protections of that state justice system, including the right to a fair trial and anti-discrimination laws.
While minorities may consent to giving up these protections, in practice, the most vulnerable in those groups, including women and children, may suffer. They may have very little knowledge about their rights or may be subject to pressure from other community members, making it effectively meaningless to talk about “consent”.
A second, and related issue, is the standards which are applied in these alternative forums. Because they are not public bodies, they are not bound by the Human Rights Act in the way national courts are. Their judgments may therefore violate human rights, and may in particular be discriminatory towards women.
Under international human rights law, the UK government remains responsible for ensuring that its human rights obligations, including under the UN Women’s Rights Convention, are met, including in minority legal orders which are not formally recognised under national law.
But in practice, it is very difficult for the government to ensure that minority legal orders are operating in a human rights compliant manner if it does not have oversight of these systems.
What is the solution?
The challenge for the independent review will be to find a way of accommodating Sharia councils within the UK legal order, which both respects the religious and cultural freedom of Muslims in the UK and ensures that the human rights of vulnerable Muslims, especially Muslim women, are protected.
Meanwhile, a bill championed by Baroness Cox has been introduced in Parliament, which would limit some of the potentially harmful effects of religious rulings on women, including by allowing discriminatory arbitration rulings to be overturned by the courts.
This is an area fraught with complexity and with sensitivities – and so it will be very interesting to see the outcome of the review, which is expected in 2017.
