Sharia Tribunals in Britain— Mediators or Arbitrators?
Both the Archbishop of Canterbury and the Lord Chief Justice ran into controversy in 2008 by appearing to suggest that sharia courts or tribunals should be given a role in the settlement of disputes. Part of the controversy, of course, arises from the fact that ‘sharia law’ in its fullness covers both criminal as well as civil law though, in fairness, both speakers were directing their remarks at the possible role of sharia tribunals as a mechanism of Alternative Dispute Resolution (ADR), especially in the settlement of matrimonial and family disputes. A similar suggestion was reportedly made, though to less publicity, by the former Chairman of the Bar Mr Stephen Hockman QC.1
The Archbishop in his speech said:
there are ways of looking at marital disputes, for example, which provide an alternative to the divorce courts as we understand them. In some cultural and religious settings they would seem more appropriate.2
http://www.telegraph.co.uk/news/newstopics/politics/lawan dorder/3523672/Sharia‐lawshould‐be‐introduced‐into‐legal‐ system‐says‐leading‐barrister.html
2 http://www.guardian.co.uk/uk/2008/feb/07/religion.world3 viii
Whilst the LCJ said:
There is no reason why principles of sharia law, or any other religious code, should not be the basis for mediation or other forms of alternative dispute resolution.3
This was then followed by press reports that sharia ‘courts’ were already operating in Britain, in particular in the form of the Muslim Arbitration Tribunal (MAT).4 The ‘revelation’ that these ‘courts’ were having their arbitration decisions (fatwas5) enforced by the state courts, in accordance with the Arbitration Act 1996 has led to campaigns to ban all religious tribunals from operating under the Arbitration Act.6
What I would suggest as also part of the reason for this public controversy is that both the Archbishop and the LCJ, together with the Muslim Arbitration Tribunal (MAT), have confused and merged together two separate and distinct ADR concepts, namely mediation and arbitration.
5 A ‘Fatwa’ is the traditional title for a Sharia legal judgement or legal opinion. Sadly since the Ayatollah Khomeini issued his infamous ‘Fatwa’ calling for the death of Salman Rushdie this respectable legal term has acquired an entirely negative connotation in the West and the mass media
6 www.onelawforall.org, www.no2sharia.org.uk http://www.secularism.org.uk/onelawforallcampaignlaunch eswith.html
Mediation is the classic ADR procedure and its purpose is to see if a legal dispute can be resolved by negotiation between the parties. The crucial point about mediation is that, even though most mediators are trained lawyers, mediation does not rely upon the application of legal rules or the determination of legal rights or wrongs it aims instead at finding common ground between parties and a solution they can both live with. (See www.civilmediation.org for further analysis.)
Arbitration by contrast is merely another form of trial before a ‘judge’ who is not appointed by the state but is instead agreed to by the parties. Arbitration is especially used in business disputes usually in order to ensure that the ‘judge’ has specialist knowledge of the area of business in question ( in building contracts for example there is invariably an arbitration clause providing for the appointment of an arbitrator who is either a qualified surveyor or architect), or arbitration is chosen in order to maintain business confidentiality since arbitration hearings are not open to the public.
It is important to note that mediation and arbi‐ tration are not merely different in their philosophical basis but also different in their legal operation. Mediation may result in an agreement which can be subsequently presented to a court and registered as a legal decision but a mediator cannot impose a media‐ tion decision and should not give directions or express opinions on legal issues or likelihoods of success. Mediation therefore leads to an agreement rather than a judgement and it is not, as such, regulated by statute.
More pertinently, a mediation agreement only has legal effect if it is ratified by a court which has to be satisfied that it is indeed an agreement between two parties who understand the legal consequences of what they have agreed to.
Arbitration, by contrast, is regulated by statute and involves the parties signing an arbitration agreement before the ‘trial’ begins. The arbitrator can act in accordance with the rules of any legal system specified in the arbitration agreement including, of course, sharia law and the ultimate ‘judgement’ of the arbitrator can be registered with the civil courts and enforced in the same way as if it were a judgement of the ordinary civil courts. It is this aspect of civil courts enforcing arbitration judgements based on sharia principles which has led to suggestions that sharia law has been given ‘official’ recognition.
However it is important to understand that the Arbitration Act does not extend to all areas of law: it does not cover criminal disputes and it does not extend to divorce or childcare cases, which is where the problems arise with the views of the LCJ: ‘there is no reason why principles of sharia law, or any other religious code, should not be the basis for mediation’. There is, in fact, every reason why the principles of sharia law should not be used as the basis for mediation and that is because mediation does not involve the application of legal rules, whether religious or otherwise, it involves a search for a mutually acceptable compromise. If MAT, or any other organ‐ isation, is applying shariah principles to a dispute, then it is engaged in arbitration not mediation and the two are not the same and should not be treated as if they were the same.
The MAT website in part seems to be holding itself out as a mediation organisation:
A trial in a court necessarily involves a winner and a loser... This can be a disadvantage where there are reasons to maintain a good relationship after the verdict. An obvious example may include divorce and child custody cases... Court hearings impose a solution on the parties without their agreement and which may need to be enforced. If the parties are able to negotiate a resolution between them, to which they both agree, this should be less of a predicament.7
But a separate section of the website says:
MAT will therefore, for the first time, offer the Muslim community a real and true opportunity to settle disputes in accordance with Islamic Sacred Law.8
Judging from its rules of procedure as set out on its website, MAT does not appear to distinguish between offering an arbitration service and offering mediation.9
The practical effects of this confusion could be very important in the area of family and childcare cases which is the area where both the Archbishop and the LCJ saw sharia as having a role to play. In the case of divorce, one of the main decisions a Family Court has
7 http://www.matribunal.com/alt_dispute_res.html 8 http://www.matribunal.com/index.html
to decide is the custody and care of any children, and such decisions have to be made by the court on the basis of an assessment of what is the ‘interests of the child’. Since children share their parents and, since it is usually in a child’s interests to keep in contact with both parents, mediation fills an important and valuable role in helping divorcees to reach custody and contact arrangements which they can both accept. In reaching such a mediated agreement there is no doubt that religious principles can be important in appealing to the parents’ better nature and leading them to look at their responsibilities as parents rather than concen‐ trating on their own negative feelings towards their former partner; however that is not the same as applying sharia law rules relating to child custody even if those sharia rules are regarded as ‘sacred’.
Sharia law rules on child custody can be quite cut and dried and were indeed described by judges in the House of Lords as ‘arbitrary and discriminatory’ in the case of M (Lebanon) v Home Secretary ( UKHL 64). In general, under sharia law custody of a child over seven years of age is given to the father, so what is a Family Court judge to do if presented with a ‘mediation agreement’ brokered by the MAT which gives custody of the children to the father? If it truly is a mediated agreement between the two parties deciding what is in the best interests of the child then in normal circumstances the court would register it and enforce it. However, the question is whether it really is a ‘mediated’ agreement or does it involve acquiescence by the woman in a sharia law rule which does not explicitly consider the interests of the child.
If it is acquiescence in a sharia law rule as opposed to a properly mediated settlement, then the Family Court cannot accept the ‘mediation’ agreement because it is not truly a mediation agreement and because enforcement of such a sharia judgement would be contrary to s6(1) of the Human Rights Act 1998. Under s6(1) ‘It is unlawful for a public authority [which includes a Court] to act in a way which is incompatible with a Convention right’, i.e. a right under the European Convention on Human Rights, and in the case of Refah Partisi v Turkey BAILII ( ECHR 87) the European Court of Human Rights stated:
Sharia, which faithfully reflects the dogmas and divine rules laid down by religion, is stable and invariable... It is difficult to declare one’s respect for democracy and human rights while at the same time supporting a regime based on sharia, which clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts.
Similarly in M (Lebanon) the House of Lords decided that shariah law rules on child custody were incompatible with the human rights protected by the Convention.
While freely chosen arbitration between equal parties in limited areas of law is long established in Britain, the attempt to extend sharia arbitration to family disputes under the misleading title of ‘mediation’ is a potential misuse of both arbitration and family law. In fairness to both MAT and the tabloid press, if the Lord Chief Justice can get the two concepts of mediation and arbitration horribly confused in his speech, then a lawyer, such as myself, can hardly blame the Archbishop of Canterbury, MAT or the press for being equally confused.