Arbitration and Mediation Services (Equality) Bill [HL] — House of Lords, 2017-01-27
Topic: Civil Rights
Richard Keen (Conservative, Centre-right): My Lords, I join all sides of the House in putting on the record my admiration not only for the determination of the noble Baroness, Lady Cox, but for the courage of the women to whom she has listened. Without their courage and that of others, we would not be debating this sensitive problem today. I understand the desire of the noble Baroness and her tireless fight to bring this matter out of the shadows and into the light of day. The Government are absolutely clear: we share the concerns raised by noble Lords in the debate that people can suffer because of decisions made by sharia councils in particular, or because the families and communities of coerced persons prevent them from understanding that they are as equal before the law as any Member of this House. These are concerns that the Government take very seriously. We know that any effective proposals to address the problem must come from thoroughly understanding its complexities and source. That is why the Prime Minister, in her previous role as Home Secretary, launched the full, independent sharia review last year, chaired by Professor Mona Siddiqui. That is also why the Government, on the broader problem of opportunity and integration, of which disadvantage to Muslim women is part, commissioned the independent review by Dame Louise Casey, who reported last month. Your Lordships will see that the Government are committed to shining a light on this problem Your Lordships will know, too, that women’s experiences of sharia councils and the issue of unregistered marriage are central to the sharia review. The Casey report has framed concerns about these in the broader narrative about how people with different backgrounds can be part of a cohesive society—a point touched on by many noble Lords in the debate. The report found that British Muslims overwhelmingly had a strong sense of belonging to Britain. We should not lose sight of that larger picture The Government are absolutely clear too that the authority of the courts in England and Wales is intact. There is and will be no parallel legal system. People are free to live their own lives according to their religious principles and the Government will not prevent them doing so. What there is in sharia and other religious councils is a means for people to seek decisions that will carry weight with their communities. This entire process should be voluntary and free from any form of force, but we have heard today of instances in which it is not. What for some is religious freedom is for others a source of injustice. That is the key to the problem before us. By its nature, of course, this is a problem that is not amenable to any easy solution Your Lordships have raised many of the issues that were put to Dame Louise relating to sharia councils and the reasons why some women may have recourse to them. We should always acknowledge that there are Muslim women for whom a religious pronouncement of divorce is important and who freely and knowledgeably choose to go to a sharia council, as followers of other religions may do with their own councils. It is important to acknowledge this: as I have said, the Government have no wish to curb religious freedom. None the less, it is of serious concern to us where women may have recourse to sharia councils because of coercion or lack of awareness of their rights. We appreciate that behind much of this are also the problems of lack of integration, of understanding, of language skills and sometimes of education. The source of that is very much lack of opportunity. The Casey report frames these issues in the contexts of integration, but also, crucially, of opportunity and understanding. That is a context we should never lose sight of I assure the House that the Government are taking the findings of the report extremely seriously. Like my right honourable friend the Secretary of State for Communities and Local Government in another place, however, I do not wish to say anything that might prejudge our response to the Casey report in spring this year or, for that matter, to the findings of the independent sharia review With that in mind, I turn to the measures in the Bill. As noble Lords are aware, sharia councils are not part of the court system in this country. I noted references to sharia courts on occasion in the debate. We do not recognise the existence of sharia courts. We understand the danger that some sharia councils may purport to perform as courts or hold themselves out as courts, but they have no legal means of enforcing their decisions. Furthermore, the evidence at this stage is that very few sharia councils will carry out arbitration, and then in only very limited circumstances. We appreciate, none the less, that there have been concerns about arbitration by sharia councils in some instances, or about their straying into matters that only a court can adjudicate on. I assure the House that the Government are taking those concerns on board and view them very seriously The Government do not consider it necessary to amend the Equality Act 2010, as Part 1 of the Bill proposes, so that it applies to arbitral tribunals. Section 33 of the Arbitration Act 1996 already imposes a duty on arbitral tribunals to act fairly and impartially, and awards can be challenged in the court if this duty is breached or there is any other serious irregularity. Section 142 of the Equality Act 2010 already makes contracts unenforceable if they treat someone in a discriminatory way. That would apply to contracts as a result of mediations that were discriminatory, including any that might be facilitated by religious councils The Government still consider that amending the public sector equality duty is neither the best way to address this issue nor an appropriate use of the duty. I am the Government. The duty is broad—deliberately so—and the Government remain concerned that this breadth of application could be undermined if specific requirements were to be separately identified within it Part 2 proposes amendments to the Arbitration Act 1996. The existing law already imposes on tribunals a mandatory duty to act fairly and impartially. Where the family court in England and Wales has discretionary powers to make orders, such as in relation to making arrangements for children following the breakdown of a parental relationship, it is not possible to enter into an agreement to be bound by the outcome of an arbitration process, as a court could always override that outcome Part 3 proposes amendments to the Family Law Act 1996. It is, however, already the case that contracts cannot be enforced if they are made under duress. In family law cases, a judge will not make an order based on a negotiated agreement unless satisfied that there was genuine consent. Because the family court already has the power to set aside such orders, the Government’s view remains that the amendments proposed are unnecessary in this context The Government do not lightly create new offences. Before we might have cause to consider the new criminal offence of falsely claiming legal jurisdiction proposed in Part 4, we would need to consult and to hear compelling evidence that it was genuinely necessary. We would also wish to await the findings of the independent sharia review I appreciate that the noble Baroness, Lady Cox, may be disheartened that she has not persuaded the Government that her Bill would be necessary or effective. Our reservations about it remain.