Blurred Boundaries; Muddied Waters or Multiculturalism Gone Astray? Some reflections on The Independent Review into the application of Sharia law in England and Wales.
By Shaheen Sardar Ali
Professor of Law, University of Warwick
The Independent Review into the application of Sharia law in England and Wales was presented to the UK Parliament by the Secretary of State for the Home Department in February 2018. In the words of the review’s chair, Professor Mona Siddiqui, the review “focused on whether sharīʿa law is being misused or applied in a way that is incompatible with the domestic law in England and Wales, and in particular whether there were discriminatory practices against women who use sharīʿa councils.” The three main recommendations emerging from this review include: (i) legislation ensuring that civil marriages are conducted before or at the same time as a nikah (ii) encouraging civil registration through awareness raising programmes (iii) state regulation of Sharīʿa councils through a code of practice.
Despite assumptions to the contrary, much has been written both at academic and at activist and policy levels, about the genesis and working of the significant numbers of Sharīʿa Councils operating in England and Wales. The rationale for their existence (since the 1980s), has been to provide services for ‘Islamic’ divorces – in particular, to those couples who have been in nikah only marriages. It was a response to increasing numbers of Muslims, mostly of South Asian origin, who have now set down roots and are now marrying (and divorcing) in their new home country. Earlier generations had wed in their countries of origin and brought along state certified documents testifying to their matrimonial status – and did not appear to have any problems with registering their marriages under the Muslim Family Laws Ordinance 1961, for instance. Even those who were married in oral nikah ceremonies happily filled the marriage contract form, had it officially translated into English and signed and sealed by the Foreign Affairs Ministry. So, are nikah only ceremonies, with the full knowledge that they do not carry official recognition, based on free and full consent of both parties to the marriage, an informed, conscious new iteration of Muslim family law in England and Wales? This, I believe is the key question to be researched and one that will offer important insights into the way forward for Muslim family law in non-Muslim jurisdictions such as Britain.
The Mona Siddiqui review is not the only one on the subject – leading to continued disquiet among sections of the Muslim communities in England and Wales. Why have only Muslim marriage and divorce practices been put under the spotlight and why are these enquiries and reviews framed within debates and strategies on counter-extremism and anti-terrorism? Why do these texts reflect a narrative blending Muslim family law into the broader discourses on post-9/11 politics, anti-Muslim perceptions, linkages between extremism, women’s rights in the Islamic traditions and Muslim family law? Why is there lack of basic knowledge of accurate terminology when engaging in these discourses? The title of the Siddiqui review mentions ‘Sharīʿa law’ – in my opinion an inaccurate phrase; at best, a careless misnomer demonstrating the many misleading terminology and understandings of Islam and the Islamic legal traditions. Are these inaccurate phrases and misnomers, simply lack of understanding, lack of interest in Muslim communities or multiculturalism gone astray? A multiculturalism that was meant to celebrate diversity by owning it as part of a rich and varied canvass of Britishness? Misusing and misunderstanding the nuances and complexities of minority traditions may perhaps be ignored when it comes from the uninitiated populace fed by the popular media and its sensational headlines. But to find such inadequacies in text written by specialists can only mean lack of interest and effort bordering on the disrespectful.
Formulating the title of this blog, I pondered over context and explanation for my choice of title. The Times of 14 March 2018 provided some of it. A headline read: “No 10 to curb Sharia in push for integration.” Under this rather broad brush headline, the Government appears to have proposals in hand to criminalise celebrants of a nikah ceremony where parties have neither had a prior civil marriage nor plan to have one on the same day as the nikah. A classic example of muddied waters: how would criminalising a celebrant to a nikah ‘push’ back Sharīʿa? Marriage in Islam is a civil contract and does not require any religious ceremony as understood in the west, broadly defined. All Muslim jurisdictions require nikah to be registered under state law. Are they ‘pushing’ back Sharīʿa? To the best of my knowledge and understanding, the main argument for registration of nikah in Muslim countries was to protect rights of the couple – in particular the wife and children. Interesting how similar legal formulations can come with such divergent interpretations!
The report of the Independent review chaired by Professor Mona Siddique is housed in the Counter-Extremism Unit of the Home Department and was undertaken as part of the government’s strategy to counter extremism. Blurred boundaries between family law and extremism? Where else in the world would one go looking for information on family law to find it in a ‘counter-extremism’ unit of the home affairs department of a country?
Let it be clear: I am not an advocate of nikah-only marriages in the UK or anywhere else unless both parties choose to remain in a nikah-only status for reasons on which they both agree. In the empirical research I am conducting on the subject with Dr Ayesha Shahid, some evidence of new, emerging Muslim marriage practices of ‘living’ Muslim family law appear on the horizon. Two reasons have been cited by some respondents: (i) the couple want to ‘test’ out their relationship and if it works then they would make it ‘legal’ by engaging in the civil ceremony as the implications of this step are ‘serious’ (matrimonial property etc.,) (ii) the second reason cited by young Muslim couples is that they would like to be in a relationship while at university or with someone they meet at work but feel ‘Islamically’ obliged to undergo a nikah to make the relationship ‘halal’. Couples in these relationships said that these were their private arrangements and families were not involved.
 The term Sharīʿa law in the title is a misnomer. Sharīʿa is not simply legally enforceable rules; going well beyond the legal domain extending to moral, ethical principles. In brief, Sharīʿa is and a code of conduct for Muslims.
 Available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/678478/6.4152_HO_CPFG_Report_into_Sharīʿa_Law_in_the_UK_WEB.pdf
 The Ministry of Justice had initiated research into mapping of Sharīʿa Councils in England and Wales led by Dr Samia Bano. See
Report: Bano, S. (2012) An Exploratory Study of Sharīʿah Councils in England with Respect to Family Law, University of Reading/Ministry of Justice, 32pp. http://www.reading.ac.uk/web/FILES/law/An_exploratory_study_of_Sharīʿah_councils_in_England_with_respect_to_family_law_.pdf. In 2016 the House of Commons Home Affairs Committee instituted an enquiry to ‘examine how Sharīʿa councils operate in practice, their work resolving family and divorce disputes and their relationship with the British legal system’. This was chaired by Yvette Cooper MP. https://www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairs-committee/news-parliament-2015/160623-new-inquiry-sharīʿa-councils/
Review of ‘The application of sharia law in England and Wales, Cm 9560’
By Ralph Grillo
Emeritus Professor of Social Anthropology, University of Sussex
In February 2018 the UK government published a report, ‘The application of sharia law in England and Wales, Cm 9560’, from a Review Panel established two years earlier by Theresa May when she was Home Secretary. The Panel, chaired by Mona Siddiqui, Professor of Islamic and Interreligious Studies, Edinburgh University, formed one element in the government’s Counter-extremism Strategy, but also responded to calls to tackle what are believed to be discriminatory and possibly illegal practices associated with the thirty plus ‘Sharīʿa Councils’ operating in Muslim communities.
Such councils began to appear in the UK in the late 1970s to early 1980s in response to social, cultural and demographic changes in the growing Muslim population of South Asian origin, among whom issues around marriage and divorce were becoming increasingly important. They attracted little public or academic attention until the mid-2000s, but since then there has been a plethora of studies, some highly controversial, showing that the councils, which are usually tied to mosques, are principally concerned with advising on Islamically appropriate practices around marriage; indeed their raison d’être is to rule on applications for a religious (not civil) divorce, principally by women, to confirm their status as devout Muslims and enable them to remarry.
The Panel, which included lawyers and a former judge, with two Imams acting as religious advisers, received evidence from councils and their users, from academics, from women’s groups, and from representatives of other religious bodies including the Jewish Beth Din. Their report acknowledges that the councils are voluntary organisations with ‘no legal status and no legal binding authority under civil law’, but accepts that they fulfill an important role for Muslims. Nonetheless, while the practices of some councils are commended (e.g. leaving the custody of children or maintenance issues to the civil courts), others are identified as ‘bad’ (e.g. persuading women to make concessions to their husbands to obtain a divorce, failing to include women on their panels, misinterpreting the meaning of ‘mediation’, and holding ‘varying and conflicting interpretations of Islamic law’. Consequently, the Panel concluded that there was ‘evidence that the rights and freedoms of some women are indeed infringed in some proceedings by some councils’.
While the Panel excluded closing the councils, as some anti-sharīʿa activists advocated (it could drive them underground), they proposed that the government should establish a body to identify and subsequently ‘monitor and audit’ a code of practice to regulate their activities; the report provides examples of such a code. A previous attempt at self-regulation, the ‘UK Board of Sharīʿa Councils’, had come to nothing.
In its response the government rejected this recommendation, the Home Secretary arguing that a ‘state-facilitated’ scheme would give the councils ‘legitimacy as alternative forms of dispute resolution’, and ‘add legitimacy to the perception of the existence of a parallel legal system’. The government would, however, ‘carefully consider’ other recommendations concerning marriage and divorce.
The Muslim marriage ceremony, the nikah, constitutes a ‘non-marriage’ in English and Welsh law, and couples who fail to conclude a civil marriage (as many do) are simply cohabitees, lacking legal protection in the event of marital breakdown. Informal ‘roundtable’ meetings with Muslim and non-Muslim lawyers and religious representatives have examined various solutions, including legally recognising a nikah and encouraging Imams to become registered celebrants. None has received universal support. Two approaches are, however, currently in play: campaigning to ensure awareness of the disadvantages of a religious-only marriage, and legislating to make it a criminal offence to conduct a religious marriage which has not been civilly registered. The Siddiqui Panel endorses both these approaches, and proposes amending the 1949 Marriage Act to penalise celebrants who solemnise a religious marriage when a civil marriage has not been concluded. The Panel also proposes extending the Matrimonial Causes Act 1973, which states that on application a civil decree absolutely may not be granted unless the marriage has been previously dissolved ‘in accordance with the usages of the Jews’ (i.e. the Get ceremony), to include Muslims, thus tackling delaying tactics on the part of recalcitrant husbands.
Beyond giving spouses rights they currently lack, civil registration would, says the Panel, have implications for religious divorce. If sharīʿa councils accept that a civil decree absolute constitutes ‘proof of irretrievable breakdown’, as some do, a religious divorce might be issued as a formality. Such measures, says the Panel, would over time lesson the demand for religious divorces from sharīʿa councils.
Leaving aside the desirability of making failure to complete civil registration a criminal offence, the Review is perhaps optimistic in thinking that councils will fade away. Some Muslims reject recognising a civil divorce: as with Roman Catholics, only religion can dissolve a marriage. And it is unclear whether devout Muslim women (or their relatives, or the community at large) accept that a civil divorce implies no need for further ratification by a recognised religious authority.