Sunday, June 26 2016

Consent in Shari’ah arbitration likened to ‘consent in rape’

The Daily Telegraph on Saturday reported on Friday's debate in the Lords on the Arbitration and Mediation Services bill introduced by Baroness Cox.  During the debate, one peer, Baroness Donaghy, stated that ‘mutuality’ in the context of consenting to the use of Shari’ah arbitration councils was “as consensual as rape”.

From the Daily Telegraph:

“Muslim women in Britain are being forced to “live in fear” because of the spread of unofficial and unregulated sharia courts enforcing Islamic rules, the House of Lords was told.

“Rulings by informal religious “councils” and tribunals are sometimes no more “consensual” than rape, peers were told.

“The warnings came in the first ever full Parliamentary debate on the subject in the UK.

The comments concern a bill which was introduced last year by Baroness Cox with the intent to ensure that “Islamic courts would be forced to acknowledge the primacy of English law”.

The article continues that “The bill, which had its first full debate yesterday, would make it a criminal offence for such bodies to style themselves as courts or those chairing them to pose as judges.

“It would also limit the activities of arbitration tribunals and explicitly require them to uphold equality laws including women’s rights.

Baroness Cox gave a number of examples during the debate, which she described as “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.”

The comments likening consent to the use of the arbitration councils to ‘rape’ came from Baroness Donaghy, who said that “The terms of reference have to be mutually agreed beforehand and there has to be acceptance of the final outcome.

“I am…concerned that the definition of mutuality is sometimes being stretched to such limits that a women is said to consent to a process when in practice, because of a language barrier, huge cultural or family pressure, ignorance of the law, a misplaced faith in the system or a threat of complete isolation, that mutuality is as consensual as rape.”

The likening of consent in the context of Shari’ah arbitration to rape is highly inflammatory and grossly misleading. Shari’ah councils are mandated and governed by the 1996 Arbitration Act which permits the use of religious arbitration in matters under civil law. As was previously explained by the former Justice Secretary, Jack Straw, “There is nothing whatever in English law that prevents people abiding by Sharia principles if they wish to, provided they do not come into conflict with English law. There is no question about that. But English law will always remain supreme, and religious councils subservient to it.” Needless to say, Baroness Cox’s stated intent to ensure that “Islamic courts would be forced to acknowledge the primacy of English law” appears to already be legally established.

As for the requirement that Shar'iah councils be made to "...explicitly... uphold equality laws including women’s rights," given the primacy of English law and the presence of the Equality Act 2010, this too is already established. This is not to say that conflicts will not arise between the equality strands governed by the Act, as demonstrated in a recent report commissioned by the Equality and Human Rights Commission, but it does suggest that much of the manner in which Shari'ah councils are spoken of and dealt with is in stark neglect of the facts concerning them.

Moreover, the attack on Shari’ah arbitration ignores their voluntary use by people who are informed of their legal status and use, including women as well as some non-Muslims. As Amra Bone who sits on the legal panel of the Shari’ah Council at the Birmingham Central Mosque has argued, “Sharia courts in Britain were initially set up to help women because they wouldn’t – or couldn’t – go to the civil courts. Sharia courts therefore offered the only way for them to get on with their lives". Such participation, by consenting adults, could hardly then be compared, in the manner raised of Baroness Donaghy, to the absence of consent in cases of rape.

The aim of the bill is also highly questionable given that the entire focus has been on the provision and use of religious arbitration in Muslim communities, ignoring almost entirely similar arbitration methods which exist in other communities- for example, Beth Din courts which operate under Jewish law. As the Lord Bishop of Manchester stated in the debate, “My concern is that the legislative solution proposed in the Bill, with its implied emphasis on Muslims and Sharia, could have the opposite, and doubtless unintended, effect of stigmatising those individuals in communities it is aiming to help.

“As currently drafted, the Bill appears to present anomalies which could create problems for those who are well aware of their rights, are independently advised and want to approach their faith tribunals for adjudication in a matter which they believe to be covered by the rules of their faith.”

Baroness Uddin also raised concerns that “Despite the number of protestations today that this is not rooted in hostility to any one religion, the perception outside this House is that this is another assault on Muslims. The way forward, therefore, is for the Government to look at this, in partnership with the communities affected and in particular with women's organisations.”

The full transcript of the debate is available to read online here.

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