The practise of Sharia law in the UK has been highly controversial. As a result of this, there are currently two inquiries being held into its use. The first was set up by the then Home Secretary, Theresa May, in spring of this year. The second is being held by the Home Affairs Select Committee. The inquiries have attracted substantial attention, and controversy. Just this week, 100 muslim women accused the inquiries of using Islamic women as “political footballs”.
Sharia law In the UK
Sharia is Islam's legal system. It is derived both from the Koran, Islam's central text, and from fatwas - the rulings of Islamic scholars. In the UK, Sharia law is mainly administered through Sharia ‘councils’.
Sharia councils attempt to resolve family, financial and commercial problems in accordance with Sharia principles. Most cases involve couples seeking to end their Islamic marriage. A 2012 study from the University of Reading estimated that there are around 30 established Sharia councils in the UK. Most councils operate from mosques. The first in the UK was established in Leyton, east London, in 1982.
When Islamic couples choose to get married, they will normally register their marriage with a Sharia council, which will issue a marriage certificate. This process is distinct from civil marriage under UK law. Estimates suggest that around 50% of Islamic marriages forego civil marriage entirely, while most of the remaining couples choose to register their marriage both with the UK state and with a Sharia council. Since Sharia councils are responsible for the issuing of Islamic marriage certificates, they are also responsible for revoking such certificates in the case of separation
Around 90% of the work of Sharia Councils is related to Islamic divorce, but Sharia councils also offer other services. These include family mediation, and rulings on commercial and financial issues such as debt recovery or contract disputes. Sharia councils will resolve all such cases in accordance with Sharia principles.
Is Sharia law enforceable in the UK?
In 2014 Baroness Cox, a member of the House of Lords, tried to introduce a law to ensure that women were not disadvantaged in mediation by religious bodies, and to make clear that religious forums are not courts. Legally, this is correct, as Sharia councils cannot override family law in the UK. A UK court must sign off on any agreement made after divorce for it to be legally binding, and won't do so if it does not comply with British law.
For instance, In 2013 the High Court was asked by an Orthodox Jewish couple to accept the ruling of a Jewish religious court on post-divorce family arrangements. The judge ruled that while the agreement would carry weight, it would be non-binding—neither party could get around English law by agreeing to abide by the decision of another tribunal. The judgment confirmed that agreements made in a religious forum are ultimately subject to English law.
However, Sharia law may be legally enforceable where a Sharia organisation is used for arbitration. This means taking a commercial or personal dispute to a neutral forum, in this case the Sharia council, and agreeing to be bound by what it decides.
Under the Arbitration Act 1996, any individuals involved in a dispute may determine their own arbiter so long as all parties agree. The parties can choose to apply rules and principles outside of UK laws so long as those rules and principle do not conflict with English law. The Muslim Arbitration Tribunal (MAT) is one example of this approach. The MAT operates in London, Bradford, Manchester, Birmingham and Nuneaton. It appoints one qualified UK lawyer and one expert in Islamic law to each case. By doing so, it attempts to ensure that the decision it reaches complies with both UK law and Sharia law.
Thus, if both parties agree, arbitral tribunals can decide certain issues by applying religious principles. This doesn't make them courts as such. Their legal authority comes from being voluntarily chosen as a decision-maker, and they can't make any decisions that are contrary to British law.
Sharia councils have frequently been accused of discriminating against women, particularly in respect to divorce proceedings. Under Sharia law, the right to divorce is primarily given to the husband. This means it can be difficult for women to initiate a divorce. Speaking when the Home Office inquiry was announced earlier this year, Theresa May stated that:
“A number of women have reportedly been victims of what appear to be discriminatory decisions taken by Sharia councils, and that is a significant concern. There is only one rule of law in our country, which provides rights and security for every citizen.”
In the House of Lords last year Baroness Cox argued that Islamic women were "oppressed by religiously sanctioned gender discrimination in this country". Similarly, Maryam Namazi, of One Law for All - a group campaigning against the use of Sharia Law in the UK, has said that Sharia council process is "tantamount to abuse", with women told to stay silent, and domestic violence justified.
While there is widespread acceptance that Sharia councils do discriminate against women, proponents argue they are better than the alternative. Appearing before the Home Affairs Select Committee on Tuesday, Zlakha Ahmed, founder of Rotherham-based domestic violence organisation Apna Haq, said that without Sharia councils most of the women she had helped would still be in "limping marriages". She claimed that their husbands could be living with other women, while the wife did the housework and was treated like a slave. But she did agree that Sharia councils could be discriminatory, stating that "there are certain behaviours that need challenging." Similarly, Khola Hasan, a senior Islamic scholars at the Islamic Sharia Council, has claimed that Sharia councils offer Muslim women a service they cannot access anywhere else. She points out that such women often cannot use English law for a divorce because they don't have a civil marriage.
Most campaigners and researchers on this subject reject an outright ban on Sharia councils. Shaista Gohir, chair of the Muslim Women's Network UK, has argued that this would drive the problem underground, push up Sharia divorce charges and reduce transparency. Instead it has been suggested that Islamic couples be required to have a civil marriage before they can be granted a marriage under Sharia law. The Muslim Women's Network UK has called for Sharia councils to stop questioning women in a way that makes them feel guilty, to involve more women in decision-making, and improve transparency by listing members of the council.
Sharia law is a sensitive political issue, but its scope in the UK is perhaps more confined that its critics believe, being used primarily to end Islamic marriages. There is evidence that such cases often involve discrimination against women, largely due to Sharia law’s belief that the right to divorce is primarily given to the man. However, a ban on Sharia councils is unlikely to be a good thing for Islamic women, many of whom would then seek out ‘underground’ operators of Sharia law to terminate their marriages. This would reduce transparency and, consequently, make Islamic women more vulnerable.
James Dobson is a researcher at Bright Blue