Top judge carefully re-opens debate about Sharia in Britain

By staff writers
July 4, 2008

Echoing remarks made early this year by Archbishop of Canterbury Dr Rowan Williams, Lord Chief Justice Lord Phillips of Worth Matravers has said that there is no conflict between Sharia principles for conflict resolution and common law in England and Wales.

In a speech on 'Equality before the Law' to leading members of the Muslim community at the East London Mulsim Centre, Braitain's most senior judge was, however, careful to avoid the verbal imprecisions which had caused uproard when the Archbishop spoke on the BBC in connection with his address at the Royal Courts of Justice - at a meeting chaired by Lord Phillips, who described the Anglican leader's lecture as "profound".

Both men have pointed out that it is possible for individuals to voluntarily conduct their lives obeying Sharia principles, or other religious or ethical principles, without this being in conflict with rights guaranteed by the civil law.

Dr Williams said some aspects of Islamic personal law, relating to marriage for example, could benefit from being included in the legal system as a way to accommodate Muslims who did not defer to British law. Others argue that this is not necessary, and that separating religious codes from civil ones - with the former sometimes seeking validation through contract law or civil marriage and divorce proceedings being adequate.

Neither Dr Williams nor Lord Phillips endorse the conservative interpretation of Islamic jurisprudence's harshest penalties and neither are calling for a parallel legal system for Muslims living in Britain - though some thought that was what the Archbishop was moving towards before his clarification under media pressure.

In a careful lecture, the Lord Chief Justice declared: "There is no reason why sharia principles, or any other religious code, should not be the basis for mediation or other forms of alternative dispute resolution [with the understanding] ... that any sanctions for a failure to comply with the agreed terms of mediation would be drawn from the Laws of England and Wales."

He also backed the creation of specialist financial products and services which comply with Sharia principles, something the UK Treasury has acknowledged since 2002. Recently there has been publicity for Sharia mortgages, which operate in terms amenable to secular, Christian, Jewish and other advocates of monetray justice.

Lord Philips stressed that he was not countenancing "any notion of sharia courts operating in this country and seeking to impose such punishments", adding that "[t]here 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 and Welsh law and subject to the jurisdiction of the English and Welsh courts."

He also said that it "was not very radical to advocate embracing sharia law in the context of family disputes, for example, and our system already goes a long way towards accommodating the archbishop's suggestion."

He explained: "It is possible in this country for those who are entering into a contractual agreement to agree that the agreement shall be governed by a law other than English law. 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. So a Muslim woman who divorced according to Sharia principles would be free to marry again, but not if she only went to a civil court."

"But as 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," the Lord Chief Justice clarified.

This morning Muslim Council of Britain (MCB) deputy leader Inayat Bunglawala and secularist Liberal Democrat peer Lord Lester broadly agreed on Sharia as a voluntary code subservient to common law, speaking on the BBC Radio 4 flagship current affairs programme, 'Today'.

Mr Bunglawala stressed: "I think it's important to clarify that English common law already allows us to go to mediation to whichever third party we wish. So that is why you have sharia council, that is why you have Jewish courts. It is a truly voluntary arrangement. There is no parallel legal system. This system cannot override English common law system at all."

The Archbishop of Canterbury had been misunderstood when it was wrongly reported in February 2008 that he said British Muslims could be governed by Sharia law rather than English law, the Lord Phillips said.

It is thought that Lord Phillips was intending to affirm the general intent of Dr Williams' previous remarks, concerned to quell the extreme rhetoric and misinformation that had clouded earlier debate, to draw a clear line between Sharia and civil law, and to recognise the needs of particular religious and minority communities to settle disputes and handle civil affairs short of recourse to formal legal proceedings - but consonant with common law should a conflict arise.

Read Lord Phillips' full speech here (*.PDF file from the Lord Chief Justice's website):
Speeches published on that website reflect the individual judicial office-holder's personal views, unless otherwise stated.

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