On Monday the Guardian published this piece about Sadakat Kadri‘s claim that

Islamic law can be compatible with the toughest human rights legislation.

I doubt this very much; and I don’t think my or anyone else’s scepticism is the result of a lack of “sharia-literacy”. In a BBC Radio 3 interview last week with Anne McElvoy (from 28’35”) Kadri complained that Islamic law is too often seen as a monolithic, savage code. He argued that we need to appreciate its nuances, that it’s not simply about violent punishments, and that the claims of Islamists do not necessarily reflect the true sharia. To me this sounds like a hopelessly abstract apologia, and reminds me of those Trotskyists who urged me in the 1980s to stop worrying about the false Marxism practised in the Soviet Union, and learn more about the true revolutionary path. But that’s beside my point.

What interests me is what the Guardian report says about the status of sharia in the UK.

In 2008, Rowan Williams, archbishop of Canterbury, sparked controversy when he appeared to suggest that sharia law should be more widely adopted.

In fact, under the Arbitration Act 1996, the rulings of religious bodies, including the Muslim arbitration tribunal, already have legal force in disputes involving matters such as inheritance and divorce.

But this isn’t the position in fact, as regards divorce.

The solicitor David Hodson has argued that legislation is needed so as to permit binding arbitration inĀ  family matters. That’s a change that would be needed because it’s well established as a matter of common law that the courts will not simply recognise and apply an agreement between wife and husband about what should happen on divorce. In Edgar v Edgar [1980] 1 WLR 1410 Lord Justice Ormrod said

it is common ground that the principle laid down by the House of Lords in Hyman v. Hyman (1929) AC 601, still applies. At page 64, Lord Hailsham L.C., said,

“However, this may be, it is sufficient for the decision of the present case to hold, as I do, that the power of the court to make provision for a wife on the dissolution of her marriage is a necessary incident of the power to decree such a dissolution, conferred not merely in the interests of the wife, but of the public, and that the wife cannot by her own convenant preclude herself from invoking the jurisdiction of the court or preclude the court from the exercise of that jurisdiction.”

It’s this rule that has stood in the way of recognising pre-nuptial agreements in this country, as Christopher Sharp QC explained in this 2009 paper.

The position’s sufficiently clear for Jack Straw, when he was Lord Chancellor and Justice Secretary in 2008, to answer a question from Dominic Grieve in these terms:

In the past year the Ministry of Justice has received a number of requests for information and details of policy relating to Sharia law and Sharia councils and their position on family issues …

Arbitration is not a system of dispute resolution that may be used in family cases. Therefore no draft consent orders embodying the terms of an agreement reached by the use of a Sharia council have been enforced within the meaning of the Arbitration Act 1996 in matrimonial proceedings.

The Guardian piece ends by setting out the supposedly “top five sharia myths”. But perhaps the most common sharia myth in this country, and one that’s been developing partly as a result of inaccurate comment, is that sharia decisions on divorce have legal effect through the Arbitration Act 1996.

2012-01-19T12:58:13+00:00Tags: , |