domingo, 15 de setembro de 2013

Sharia law, the Arbitration Act 1996 and the Arbitration and Mediation Services (Equality) Bill

Baroness Cox Equality Bill - Second Reading

Arbitration and Mediation Services (Equality) Bill

Second Reading

12.01 pm

Moved by Baroness Cox

That the Bill be read a second time.

Baroness Cox: My Lords, I am most grateful to all noble Lords speaking in this debate and to many other noble Lords, too many to mention by name, who have expressed their support for the Bill but are unable to be here today. The Bill seeks to address two interrelated issues: the suffering of women oppressed by religiously sanctioned gender discrimination in this country; and a rapidly developing alternative quasi-legal system which undermines the fundamental principle of one law for all. The Bill is strongly supported by many Muslims and by Muslim women’s organisations such as Inspire, as well as by the Iranian and Kurdish Women’s Rights Organisation, the Henna Foundation, Karma Nirvana, British Muslims for Secular Democracy and the National Secular Society. I am grateful to them all for their support.

Awareness of the need for the Bill arose from mounting evidence of serious problems affecting some women in this country from the application of Sharia law. I immediately reassure your Lordships that I am not anti-Muslim. Indeed, I am deeply concerned that Muslim women enjoy their full legal and civil rights under the law of this land. If women from other faiths experience comparable problems of systematic discrimination, the provisions of this Bill would also be available for them as it does not name any religion.

The problems I will highlight often arise because many women believe that Sharia courts are real courts and do not know that they have other rights under English law or they are pressured by their family or community not to seek those rights outside their community. I give two examples of the kinds of problems afflicting women in this country. I have met these women and witnessed their distress. One suffered such severe domestic violence that she was hospitalised. She was pressured by her family not to seek help from the police as this would bring “shame” on the community. She went to the local Sharia court or council and was told to return to her husband. She did so and suffered more domestic violence. Then her husband divorced her, went back to his country of origin and returned with a second wife. As a devout Muslim, she wanted a religious divorce to allow her to remarry in accordance with her faith but the Sharia court demanded her marriage certificate which her husband’s family kept. Attempts to retrieve it resulted in violence in the name of “honour”, as she was blamed for bringing shame on the family by seeking a divorce. Seven years later this devout and desperately lonely Muslim lady is still unable to obtain her divorce and remarry.

Secondly, a Muslim widow wanted to remarry but was told by the Sharia council or court that she must obtain the permission of a male relative. She had no male relative in this country so she had to travel to Jordan to obtain the written permission of a seven year-old boy relative in order to be able to remarry in this country. It is not surprising that another young woman complained, “I feel betrayed by Britain. I came to this country to get away from all this but the situation is worse here than in my country of origin”.

Other examples concern children. Under Sharia law a father who divorces his wife can claim custody of his children once they reach the age of seven. This gender discrimination violates the fundamental legal principle in this country that custody should be determined according to the best interests of the child. These examples are just the tip of an iceberg as many women live in fear, so intimidated by family and community that they dare not speak out or ask for help. A lady came to see me in my home. I shall never forget seeing her hide behind a tree because she was so terrified of being seen. We should not have such fear in this country.

The first fundamental concern my Bill seeks to address is the development of a parallel quasi-legal system based on inherently discriminatory principles. This may involve proceedings operating under the terms of the Arbitration Act or it may involve less formal community forums for resolving disputes. While some operate in ways which are not problematic, others give cause for the second and related concern that many women suffer from gender discrimination in these contexts. This discrimination includes unequal access to divorce as between a husband and wife. A husband can obtain a divorce merely by saying, “I divorce you” three times, whereas a wife has to go through all sorts of procedures at a Sharia court or council. It also includes tolerance of certain forms of domestic violence, a man’s right to polygamy, inequality between men and women with regard to child custody and inequality with regard to inheritance provisions. It even affects rules of evidence, since under Sharia law a woman’s testimony counts for half that of a man’s.

Let me make clear what the Bill does not do. The Bill does not interfere in the internal theological affairs of religious groups. If people wish to submit voluntarily to the rulings of any body, religious or otherwise, even if that means surrendering their rights under English law, they are free to do so. The Bill does not force them to give up religious law or abnegate conscience in favour of the law of the land. The Bill also recognises existing legally sanctioned forums for arbitration, including Muslim arbitration tribunals or MATs and various forms of mediation available in religious or secular contexts. The Bill will not affect the continuation of these provisions or their growth and development in accordance with the law of the land.

Let me here acknowledge valid concerns raised by the noble Lord, Lord Marks, and others, and say that I accept the need to amend the Bill to reflect recent developments in relation to family law arbitration. I intend to remove the references to family law in the new criminal offence created by the Bill. Family law arbitration will therefore continue to be permitted. However, the non-discrimination provisions of the Bill will apply. Therefore, this will not be an obstacle to mainstream family law arbitration, but will reinforce the need to address sex discrimination in religious arbitration.

I now turn to some specific concerns and how the Bill addresses them. The Arbitration Act 1996 facilitated the establishment of arbitration tribunals. Some operate according to Sharia law. They allow parties to settle certain civil, largely financial, disputes in such a way that the arbitration awards can be enforced in UK courts. However, there is a concern that even when these tribunals are operating within the terms of the Arbitration Act, some are practising sex discrimination. For example, a tribunal in Nuneaton adjudicated on an inheritance dispute between three sisters and two brothers and, in accordance with Sharia law principles, the men were given double the inheritance of the women.

Some arbitration tribunals appear to act outside their legal remit. The MAT claims on its website to be able to hear disputes involving,

“allegations of money squandering/misappropriation”.

There have also been reports of MATs dealing with acts of grievous bodily harm. An investigation by Edna Fernandes, reported in the Daily Mail on 4 July 2009, concluded that,

“scores more imams dispense justice through their own mosques”,

and that,

“sharia is being used informally within the Muslim community to tackle a plethora of crime”.

The Arbitration Act does not empower MATs to arbitrate on criminal matters, and it is surely unacceptable to condone a situation where non-Muslim offenders get a criminal record, but Muslims do not. My Bill would make it a criminal offence to falsely claim legal jurisdiction. Any person who purports to arbitrate in any matter which is within the jurisdiction of the criminal courts would be liable, on conviction, to a maximum penalty of five years in prison.

One report has estimated that there are at least 85 Sharia forums in the United Kingdom. As far as we can ascertain, the Sharia courts or councils keep scant records, and have no right of appeal. There is nothing like the control over justices’ appointment and conduct that apply in secular courts. Most do not operate under the Arbitration Act. Instead, they informally resolve disputes under what is loosely termed “mediation”. As I have said, many women wrongly that think these informal tribunals are real courts and submit to their rulings accordingly.

The Bill cannot solve every problem, but it does offer one opportunity for redress. Where a negotiated agreement is formalised in a consent order, the Bill would make it easier to set aside the consent order if it was reached under duress, or where a party’s consent was not genuinely informed—for example, where a woman was not aware that she would have had different rights according to UK civil law. Also, my Bill would make it easier for women who are unhappy with discriminatory rulings to apply to the courts to have them overturned on the grounds of gender discrimination. The Bill also strengthens the power of the police and courts to protect victims of domestic violence from coercion and intimidation. It also enhances the public sector equality duty. For example, police, social workers or healthcare workers interacting with Muslim women would be encouraged to explain to Muslim women how their legal rights are diminished if their marriages are recognised only under religious law and not civil law. Many women have described how they are discouraged from having a civil as well as an Islamic marriage. This gives rise to grave problems, especially when, as often happens, a husband subsequently divorces his wife, leaving her with no civil rights.

In conclusion, as these are such complex, sensitive and delicate issues, I intend to request the Liaison Committee to consider the subject for one of the ad hoc committees in the New Year, or to establish an independent committee of inquiry to enable a wide range of views to be presented, reflecting a broad spectrum of experts and personal testimonies, and those with concerns about the Bill. A full report will be made available which will, I hope, help greatly to clarify many of the issues, explore ways in which the Bill can be amended to make it more appropriate, and open up these issues for broader public discussion.

We cannot continue with the present situation in which so many women are suffering from gender discrimination in our country today in ways that would make the heroines of the suffragette movement turn in their graves. We must address the danger that a parallel de facto legal system may become entrenched, thereby undermining the fundamental principle of our liberal democracy: the principle of one law for all.

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