Mind the Gap: The Equality Bill and Sharia Arbitration in the United Kingdom
Maret, Rebecca E., Boston College International and Comparative Law Review
Abstract: The observance of Sharia principles in Islamic arbitration tribunals operating in the United Kingdom has been heralded for its ability to provide Muslim communities with internal, community-based fora for dispute resolution. Although the judgments issued by these faith-based arbitration tribunals lack binding legal authority, British lawmakers express concerns centered on threats to the existing national legal system and to England's deeply rooted social policy of equality and non-discrimination. Introduced to address these concerns in 2011, the Equality Bill proposes a legislative solution to further maintain the principle of equality within alternative dispute resolution channels. This Note argues that, despite the Equality Bill's laudable effort to curb discrimination and violations of England's policy of equality, legislative reform alone will be unlikely to affect the Bill's desired goals.
Over past decades, the United Kingdom has experienced a steady growth of Muslim communities within its borders, and with it, a surge of faith-based arbitration services for Muslims.1 Recent estimates posit that at least eighty-five Islamic law councils or tribunals currendy oper- ate throughout the United Kingdom.2 Although the judgments issued by these faith-based arbitration tribunals lack binding legal authority,3 the tribunals continue to offer mediation services for family, business, and some criminal law disputes,4 and their associated judgments have been considered by judges in English civil courts.5
On June 7, 2011, Baroness Caroline Cox proposed a bill (Equality Bill) in the House of Lords that seeks to limit the legality of Islamic law courts operating in England and Wales.6 The Equality Bill aims to pro- vide additional protection for victims of domestic abuse and to make further provisions concerning equality under the law of alternative ar- bitration and mediation services.7 If passed, the Equality Bill would in- troduce a maximum five-year jail sentence for any person falsely claim- ing that Islamic law courts or councils have legal jurisdiction over family or criminal law,8 and would effectively force Islamic arbitration councils "to acknowledge the primacy of English law."9 The Equality Bill has yet to receive a vote in the House of Lords, but already it has intensified the debate on how the United Kingdom might address the challenges posed by the complex relationship between the State and the minority cultural and religious populations living within English society.10
This Note proceeds in three Parts. Part I provides a background on Islamic law and the development of Islamic arbitration tribunals in the United Kingdom. Part I also details the growth and importance of arbitration in England. Part II discusses the Equality Bill, giving particu- lar consideration to those aspects of the Bill that would impact Islamic arbitration tribunals. Part II also considers England's historical com- mitment to equality as shown by various pieces of equality legislation. Part III analyzes the potential impact of the Equality Bill, and argues that although the Bill is laudable in its objective, its intended conse- quences may only truly be realized by engaging in social-not simply legal-reform aimed at bridging the gap between England's existing legal system and its cultural minority populations.
A. Islam in England
Historically, Islamic culture has maintained a practice of encourag- ing peaceful resolution of disputes involving Muslims.11 Rooted in an understanding of Muslims as shahadat- "witness over other nations" - Islam emphasizes that peace must first come from within and among Muslims themselves.12 To be deserving of shahadat, Muslims must also be committed to initiating peace among their non-Muslim neighbors and other communities.13
Described as the "kernel of Islam,"14 Sharia, or Islamic law, provides Muslims not just with a formal legal code dictating what individuals are bound to do under law, but "what [individuals] ought, in conscience, to do or refrain from doing. …