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Thursday, 10 July 2008
Update. The Lord Chief�s speech is now available on line.
 After the selective reporting immediately after his speech last week to the East London Muslim Centre the full speech is now available.
It is a 10 page speech and he touches on Sharia law briefly on page 8 going into page 9. The rest of his very sensible presentation has been ignored. The speech was entitled Equality Under the Law.
Muslim men and Muslim women are entitled to be treated in exactly the same way as all other men and women in this country. And there is, of course, another side to this coin. Rights carry with them obligations, and those who come to live in this country and to benefit from the rights enjoyed by all who live here, also necessarily come under the same obligations that the law imposes on all who live here. The title of my talk is ‘equality before the law’, and it may be helpful to consider at the outset what ‘the law’ is. The law that I am to talk about is the set of rules that govern how we live in society.
It continued with the history of English law, through Magna Carta, the enfranchisement of Catholics, Jews and women, the emancipation of slaves, up to and including the European Convention of Human Rights and the Human Rights Act.
Freedom of speech has long been prized and protected in this country. Any person is free to preach the merits of his own religion, and freedom of religion includes the right to change one’s faith, or apostasy.
Let me try to summarise the position. British law has, comparatively recently, reached a stage of development in which a high premium is placed not merely on liberty, but on equality of all who live in this country. That law is secular. It does not attempt to enforce the standards of behaviour that the Christian religion or any other religion expects. It is perhaps founded on one ethical principle that the Christian religion shares with most, if not all, other religions and that is that one should love one’s neighbour. And so the law sets out to prevent behaviour that harms others. Behaviour that is contrary to religious principles, but which is detrimental only to those who commit it, is not, in general, contrary to our law. A sin is not necessarily a crime.
When did we last hear someone in public office acknowledge the existence of sin?
Those who come to live in this country must take its laws as they find them. British diversity is valued and the principles of freedom and equality that the law protects should be welcomed by all. Laws in this country are based on the common values of tolerance, openness, equality and respect for the rule of law. Whilst breaches of the requirements of any religion in the U.K. may not be punished by the law, people are free to practise their religion. That is something to be valued.
He was quite definite that the law of England and Wales is the law of the land. It is secular but with a Christian heritage. And all must obey it. Then he moved on to Sharia law and its place. He spoke of Islamic finance and the sukuk. He admited that Sharia is not his field but that he has been talking to lawyers in Oman. He explored briefly the way Sharia is interpreted in different countries.
But he said that whatever Sharia courts do or do not do in the way of punishments abroad in England and Wales,
There can be no question of such courts sitting in this country, or such sanctions being applied here.
So far as the law is concerned, those who live in this country are governed by English law and subject to the jurisdiction of the English courts.
That sounds quite clear to me. He moved on to the Archbishop of Canterbury’s lecture at a meeting which he chaired. Lord Philips believes that Dr Williams has been misunderstood and that his speech requires requires several readings.
A point that the Archbishop was making was that it was possible for individuals voluntarily to conduct their lives in accordance with Sharia principles without this being in conflict with the rights guaranteed by our law.
This fits with what the Archbishop of Rochester said about an Islamic state should enable a Muslim to live as a good Muslim without coercing him into a certain form of behaviour.
Those who, in this country, are in dispute as to their respective rights are free to subject that dispute to the mediation of a chosen person, or to agree that the dispute shall be resolved by a chosen arbitrator or arbitrators. There is no reason why principles of Sharia Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution. It must be recognised, however, that any sanctions for a failure to comply with the agreed terms of the mediation would be drawn from the laws of England and Wales. So far as aspects of matrimonial law are concerned, there is a limited precedent for English law to recognise aspects of religious laws, although when it comes to divorce this can only be effected in accordance with the civil law of this country.
It is very limited in my experience. I do recall one case whether one of the terms of the settlement was that the husband would make the appropriate arrangements at the Beth Din for the Get or Jewish religious divorce.
Solicitors have been required for some years to advise their clients in matrimonial disputes that mediation is available and where and how to seek it. A better example of an outside body arbitrating is the organisation ACAS, the Advisory, Conciliation and Arbitration Service which works in the field of industrial relations.
He concluded by recommending the pro bono legal advice facility available at the East London Muslim Centre, encouraged good interfaith relations and the desirability for diversity among judicial officer holders. I take this to mean encouragement to those present to consider applying to become magistrates. Lay magistrates are not salaried, merely paid expenses, and so the Ministry of Justice is keen to recruit more.
The Lord Chief certainly did not say that Sharia could or should run in tandem with the existing Common Law. I think he made it quite clear that it was for voluntary and personal consumption only.
Where I think he was naïve in mentioning it at all was in forgetting that he would be reported not by Court Reporters but by journalists. Court reporters are frequently barristers themselves, they report the entire judgment of a case, verbatim, very accurately and not coloured by their own view.
I don’t think he had taken on board properly that some young hack would run out of the Muslim centre with a smashing soundbite. “Muslims can have Sharia law within the English system!!!” Everything else he said, and the very limited circumstances within which it has a place doesn’t really matter with a sentence like that.
In October Lord Justice Igor Judge will take over from Lord Philips as Lord Chief Justice by He is a different personality and I think he will be more aware of the media and how his work out of court will be reported and interpreted. Frances Gibb of The Times agrees with me here, I am glad to say.
On examination one can see that Sharia was put in its place that day. Limited, voluntary and ultimately powerless. Posted on 07/10/2008 4:58 AM by Esmerelda Weatherwax
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