Friday, 4 July 2008

Bad week for secular Britain - now Lord Chief Justice says sharia law could have a place in UK

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First we have the news that at least 40 faith schools are teaching creationism in science lessons (via a report on More4 news) and now we wake up to discover that Lord Phillips, the Lord Chief Justice, thinks that sharia law could have a place in the UK legal system.

Phillips, who is the most senior judge in England and Wales, told an audience at the East London Muslim Centre that sharia could play a part in settling divorce cases and other family disputes:

"There is no reason why sharia principles, or any other religious code, should not be the basis for mediation or other forms of alternative dispute resolution. It must be recognised, however, that any sanctions for a failure to comply with the agreed terms of mediation would be drawn from the laws of England and Wales."

While Phillips wasn't advocating the establishment of sharia courts in the UK, it seems his comments will reignite a debate that many hoped had gone away following the furore over the Archbishop of Canterbury's comments earlier this year.



Grendle said...

Mediation (also known as Alternative Dispute Resolution or ADR) is one of the alternative methods of dispute resolution that has been developed in modern western world over the last 30 years or so. Since 1999 it has been encouraged by the courts to avoid cases taking up the courts' time when they could be settled. An unreasonable refusal to mediate can mean that the party that refuses mediation is judged unable to recover their costs in the event they win the court case. (Mediation of disputes by an independent third party has of course been practiced more informally throughout history.)

UK mediation services already help people - of all religions and none - reach settlements without having to use the courts; particularly in cases of divorce settlements, financial or family disputes, disputes between neighbours etc. There is usually a standard clause in the final agreement (contract) drawn up stating ‘This agreement shall be governed by and construed in accordance with English law, under the jurisdiction of the English Courts.’ The contract is usually drawn up by a solicitor (there is also a standard form available) and signed by both parties and witnesses. This contract is a legally binding document. In other words if the agreement (contract) is broken then there is legal redress available through the courts through contract law.

What is being proposed by the Chief Justice and the Archbishop is that Islamic methods of mediation – already practiced in the UK in the case of divorce etc - be brought into line with the processes already developed. One difficulty with this is that it opens the doors for several other cultural groups to claim the same right. The recent suggestions aren’t suggesting that Sharia law be practiced in UK courts, taking precedence over UK civil and criminal law.

I think current civil mediation procedures are suitable for all faiths and those with none. By allowing different religions or cultures opportunity to try and resolve disputes within their own communities the UK courts are sidelined to simply ruling whether a contract has been broken or not. It also would mean that a ‘tradition’ will develop in these communities that disputes are settled internally and not brought to wider attention; that could well mean in practice that many feel pressured to taking that course, regardless of how consistent or fair it is. It also means that any agreement reached is based on the values and traditions of that community. It strengthens these religions claim to be legitimate ruling body for their community. Some may prefer that, but it discriminates against those that would prefer to go through the UK courts system. This could also result in these communities become more inward looking, making integration even more difficult.
If mediation is to be independent there is a strong case that it should be by someone from outside that community.

These suggestions should be opposed, but not for the reasons put forward by a hysterical tabloid press; as usual they’ve got the wrong end of the stick.
They should be opposed because there should be a uniform, consistent mediation system in place that treats everyone equally, regardless of religious or cultural beliefs. That way there is equality before the law.

Tom Rees said...

The problem is that religious mediation is not the same as other forms of voluntary mediation - in that it is frequently not voluntary at all. In fact, individuals may come into it in the belief that if they do not co-operate (and instead appeal to other forms of mediation/justice) they will go to hell or face some other form of supernatural punishment. For this reason all religious and faith-based mediation should be opposed or at least heavily laden with caveats and real opt-outs.

Grendle said...

Tom: I think we’re in agreement that the idea of institutionalising any religious based mediation should be opposed; my last paragraph contained:
‘These suggestions should be opposed…because there should be a uniform, consistent mediation system in place that treats everyone equally, regardless of religious or cultural beliefs. That way there is equality before the law.’

You make a good point about the pressure that can be brought to bear on people to use a religious mediation service. Again, I think I did point to this in my comment – ‘that could well mean in practice that many feel pressured to taking that course, regardless of how consistent or fair it is.’

I explained the current arrangements regarding (secular) mediation services in some depth, because from the press coverage I’ve seen this is not widely known about. We need to understand the context of the proposal in order to oppose it most effectively.

Anonymous said...

I think it's hot air and appeasement to the muslim community.