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A review of the Arbitration and Mediation Services (Equality) Bill [HL] 2015-16

Summary

8 October 2015

As explained in my piece “Muslim religious marriages and divorces – the problems and ways forward” Muslim women regularly encounter two problems in Britain:

  1. They have a civil marriage and a nikah (Muslim religious marriage) and the marriage fails. The wife is able to divorce her husband under civil law, but he refuses to grant her a religious divorce (a dissolution of the nikah).
  2. Some women have only a nikah without having a civil marriage. When the relationship fails, they find that they have no legal claims against the man, since the law (quite properly in my view) does not recognise the nikah as creating any legal relationship between the man and the woman.

To address problem (1), women in those circumstances will often seek help from Islamic Shariah Councils which most Muslims regard as empowered to dissolve nikahs. While some Shariah Councils give good service, many do not, and women often find themselves asked to attempt reconciliation with men they have separated from and who may be abusive or violent.

How the Bill originated

Baroness Cox is a cross-bench member of the House of Lords. For some time she has been concerned about the impact of the above problems on Muslim women.

For example, in December 2014 the charity Aurat: Supporting Women issued a report “Equal and Free? 50 Muslim Women’s Experiences of Marriage in Britain Today” and Baroness Cox wrote the introduction to the report.

As long ago as 11 May 2012 she introduced a Private Members Bill, the Arbitration and Mediation Services (Equality) Bill [HL] 2012-13 into the House of Lords. While the Bill received a second reading on 19 October 2012 (I understand that by House of Lords convention there is never a vote on second readings) the committee stage of the Bill, when it receives line by line scrutiny, was never scheduled. That is the normal way for the Government to kill off a House of Lords Private Members Bill which it does not support; the Bill never finds any Parliamentary time. The Bill eventually lapsed when that session of Parliament ended.

Baroness Cox tried again on 12 June 2014 when she introduced the Arbitration and Mediation Services (Equality) Bill [HL] 2014-15 into the House of Lords. This Bill never even received a second reading, and duly lapsed when Parliament was dissolved on 30 March 2015.

Baroness Cox is now trying again. On 1 June 2015 she introduced the Arbitration and Mediation Services (Equality) Bill [HL] 2015-16 into the House of Lords. This is scheduled for a second reading on 23 October 2015.

For the reasons explained above, I expect it to receive an unopposed second reading, and then to eventually lapse due to the Government not making Parliamentary time available, since it is clear from the history that the Bill does not have Government support.

Even though the Bill stands no realistic chance of becoming law, I have commented on it in detail below, as I believe that the Bill is fundamentally misconceived, despite trying to address the real problems mentioned above. My comments below are all based on the text of the 2015-2016 Bill. While I believe this text is unchanged from earlier versions, I have not bothered comparing them, since the earlier versions are now history.

Clause by clause review of the Bill

The bill is relatively short, consisting of only seven clauses and one schedule.

Clause 1

1 Providing arbitration services

(1) The Equality Act 2010 is amended as follows.

(2) In section 29 (provision of services, etc.), after subsection (10) insert—
“(11) A person must not, in providing a service in relation to arbitration, do anything that constitutes discrimination, harassment or victimisation on grounds of sex.
(12) For the purposes of subsection (11), discrimination on grounds of sex includes but is not restricted to—
(a) treating the evidence of a man as worth more than the evidence of a woman, or vice versa,
(b) proceeding on the assumption that the division of an estate between male and female children on intestacy must be unequal, or
(c) proceeding on the assumption that a woman has fewer property rights than a man, or vice versa.”

(3) In section 142 (unenforceable terms), after subsection (5) insert—
“(6) A reference in subsection (1) includes a term by which parties agree that rules shall apply to one or more matters in so far as those rules constitute, promote or provide for treatment of that or another person that is a description prohibited by this Act on the grounds of sex.”

(4) In section 149 (public sector equality duty), after subsection (3) insert—
“(3A) The steps involved in removing or minimising disadvantages suffered by persons who share a relevant protected characteristic that is connected to that characteristic include steps to take account of the fact that those who—
(a) are married only according to certain religious practices and not according to law, or
(b) are in a polygamous household, may be without legal protection.
(3B) Steps under subsection (3A) should include but not necessarily be restricted to—
(a) informing individuals of the need to obtain an officially recognised marriage in order to have legal protection, and
(b) informing individuals that a polygamous household may be without legal protection and a polygamous household may be unlawful.”

(5) In paragraph 3 of Schedule 3 (judicial functions), after sub-paragraph (2) insert—
“(3) For the avoidance of doubt, a reference in sub-paragraph (1) to a judicial function does not include a reference to a person falling within section 29(11).”
(6) In paragraph 3 of Schedule 18 (judicial functions, etc.), after sub-paragraph (2) insert—
“(3) For the avoidance of doubt, a reference in sub-paragraph (1) to a judicial function does not include a reference to a person falling within section 29(11).”

While “arbitration” and “arbitration services” are not expressly defined, it is clear from the rest of the Bill that the words refer to arbitration services under The Arbitration Act 1996.

What arbitration services would clause 1 apply to?

Individuals and legal persons (companies) who have disputes can either litigate them through the courts, or they may decide to have the settled by arbitration. Quite often the original contract between the parties over which a dispute has arisen will have stipulated that disputes should be settled by arbitration.

In my view the processes regulated by the Arbitration Act 1996 can only apply to disputes that otherwise are at least conceptually capable of being decided by the English courts. In the current context, that would include disputes over the division of assets as part of a divorce of a legal marriage under English law. It would also include the division of assets after the breakup of a cohabitation. Under English law a nikah entered into the UK does not create a marriage, but being a contract entered into by the parties it may contain provisions about the distribution of shared property in the event of dissolution.

However in my view the question of whether a woman is acting in violation of Islam by contracting a nikah with a second man after her relationship with her first man has broken up, without having received a talaq (religious divorce) from the first man, could not be decided by English courts. They decide matters of English law, not religious questions.

Accordingly I consider that clause 1:

How would clause 1 work?

Clause 1(2) would be implemented by amending the Equality Act [henceforth abbreviated as EA] 2010 s29, to make certain actions unlawful sex discrimination.

Clause 1(3) would amend EA 2010 s142 (which makes certain contract terms unenforceable) so that it would apply to any agreement to accept sex-discriminatory treatment as itemised above in an arbitration.

The public sector equality duty is something imposed on public authorities by EA 2010 s149. Clause 1(4) expands this duty by requiring public authorities to help people who may be in the circumstances mentioned in the clause.

EA 2010 Sch 3 para 3(1) excludes the exercise of a judicial function from the non-discrimination requirements of EA 2010 s29. For the avoidance of doubt, clause 1(5) & (6) define anyone caught by the earlier provisions to be not exercising a judicial function, so that the EA 2010 non-discrimination provisions apply to them.

My assessment of clause 1

English law gives all of us in the UK some fundamental rights:

Accordingly, at first instance it appears shocking that anyone might wish to conduct an arbitration based on different assumptions. However there are some fundamental issues of individual freedom involved.

A hypothetical example to explore apparent age discrimination

Consider a commercial dispute between two men, M1 and M2, both of whom are adults and of sound mind, which they wish to have arbitrated. Both M1 and M2 consider that the testimony of witnesses who are over the age of 40 is more reliable than the testimony of witnesses who are under the age of 40. Accordingly they wish to instruct the arbitrator to conduct his arbitration taking that stipulation into account.

In my view such a stipulation would prima facie be lawful and would not be unenforceable. While the stipulation seems somewhat imprecise, provided the arbitrator applied the stipulation in good faith and to the best of his ability, I would expect the arbitration award to be upheld if challenged in court. I would not expect the court to be concerned about the apparent breach of the Equality Act, by apparent age discrimination, since the witnesses are not suffering from any age discrimination. Only M1 or M2 could suffer any detriment from a younger person's testimony being given less weight, and they have freely agreed the arbitration terms.

Why should the situation be different if the stipulation states that the weight given to one male witnesses will be equal to the weight given to the testimony of two female witnesses? No woman is being discriminated against by less weight being given to her testimony, since the dispute is between two men, M1 and M2. If M1 and M2 wish to have their dispute arbitrated with this stipulation, because of their personal religious beliefs, why should the law interfere?

Sex discrimination

The analysis becomes more challenging when one of the parties to the dispute is a woman and one party is a man, and both are expected to testify in the arbitration, possibly along with other witnesses. However if the woman voluntarily agrees to arbitration with the gender weight stipulation, because of her religious beliefs, why should the law interfere?

After all, if the woman wanted to, she could pursue the matter through the civil courts, and refuse to agree to arbitration unless the gender of witnesses was treated as irrelevant.

It is often alleged that such consent is not given voluntarily. However the way to deal with coercion is to investigate to see whether coercion has occurred. I would need to see real evidence that such coercion is so widespread that women can never be allowed to agree to arbitration with the gender weight stipulation, or indeed men such as M1 and M2 above. I do not believe that such evidence has been put forward.

Final comments on the clause

The clause reminds me of those who wish to liberate women from niqab and burqa by making their wearing unlawful, proceeding on the assumption that almost all women who wear them are coerced into doing so. Proceeding in that manner, as France has done, ends up criminalising women who freely wish to wear niqab and burqa due to their sincerely and freely held religious beliefs.

Finally, I strongly support the extension of the public sector equality duty. Many lives are blighted, particularly in the case of women, by entering into a nikah without entering into a civil marriage at the same time. Any measures that may help to reduce the numbers are very welcome.

Clause 2 and Schedule

2 Arbitration services: consequential amendments

The Schedule (consequential amendments) has effect.

SCHEDULE Section 2 CONSEQUENTIAL AMENDMENTS

Arbitration Act 1996

1 The Arbitration Act 1996 is amended as follows.
2 In section 46 (rules applicable to substance of dispute) after subsection (1) insert—
“(1A) Whether subsection (1)(a) or (b) above is the case, the tribunal shall decide the dispute in accordance with the provisions of section 29(11) of the Equality Act 2010.”
3 In section 68 (challenging the award: serious irregularity), after subsection (2)(g) insert—
“(ga) failure of the arbitration proceedings to comply with section 6A;”.
4 In section 73 (loss of right to object), after subsection (2) insert—
“(3) This section does not apply to any arbitral award made pursuant to proceedings which are not in accordance with the provisions of section 6A.
(4) This section does not apply to any arbitral award that is not in accordance with the provisions of section 29(11) of the Equality Act 2010.”
5 In section 108 (extent), after subsection (1) insert—
“(1A) The following provisions of Part I do not extend to Northern Ireland—
(a) section 6A (discriminatory terms of arbitration),
(b) section 46(1A) (rules applicable to substance of dispute),
(c) section 68(2)(ga) (challenging the award: serious irregularity), and
(d) section 73(3) and (4) (loss of right to object).”

Equality Act 2010

6 The Equality Act 2010 is amended as follows.
7 In subsection (2) of section 217 (extent), after “apart from” omit the words to the end of the subsection and insert—
“(a) section 29(11) and (12) (provision of services, etc.);
(b) section 142(6) (unenforceable terms);
(c) section 149(3A) and (3B) (public sector equality duty);
(d) section 190 (improvements to let dwelling houses);
(e) Part 15 (family property);
(f) paragraph 3(3) of Schedule 3 (judicial functions); and
(g) paragraph 3(3) of Schedule 18 (judicial functions etc.),
forms part of the law of Scotland.”

Comments on clause 2 and the Schedule

These are various consequential amendments needed to make clause 1 effective. Accordingly there is point in commenting on them separately. If one believes clause 1 is desirable, then these changes follow naturally, and there is little point in my spending time checking whether their drafting is sufficiently comprehensive.

Clause 3

3 Validity of arbitration

(1) The Arbitration Act 1996 is amended as follows.
(2) After section 6 (definition of arbitration agreement), insert—

“6A Discriminatory terms of arbitration
No part of an arbitration agreement or process shall provide—
(a) that the evidence of a man is worth more than the evidence of a woman, or vice versa,
(b) that the division of an estate between male and female children on intestacy must be unequal,
(c) that women should have fewer property rights than men, or vice versa, or
(d) for any other term that constitutes discrimination on the grounds of sex.”

Comments on clause 3

This continues with further amendments needed to make clause 1 effective. Accordingly clause 3 does not need separate discussion.

Clause 4

4 Court orders based on negotiated agreements

(1) The Family Law Act 1996 is amended as follows.
(2) After section 9 (arrangements for the future), insert—

“9A Court orders based on negotiated agreements

(1) A court may issue a declaration setting aside any order based on a mediation settlement agreement or other negotiated agreement if it considers on evidence that one party’s consent was not genuine.

(2) A court may make a declaration under subsection (1) on an application being made to it by—
(a) a party to the agreement;
(b) a relevant third party.

(3) An application may be made by any other person with the leave of the court.

(4) In deciding whether to grant leave, the court must have regard to all the circumstances, including—
(a) the applicant’s connection with the party,
(b) the applicant’s knowledge of the circumstances of the party, and
(c) the wishes and feelings of the party so far as they are reasonably ascertainable and so far as the court considers it appropriate, in the light of the person’s age and understanding, to have regard to them.

(5) In assessing the genuineness of a party’s consent, the court should have particular regard to whether or not—
(a) all parties were informed of their legal rights, including alternatives to mediation or any other negotiation process used, and
(b) any party was manipulated or put under duress, including through psychological coercion, to induce participation in the mediation or negotiation process.

(6) For the purposes of this section, “negotiated agreement” means an agreement which has been reached as the result of any form of negotiation, other than mediation, and “negotiation process” is to be construed accordingly.

(7) For the purposes of this section, “relevant third party” means a person specified, or falling within a description of persons specified, by order of the Secretary of State.

(8) An order of the Secretary of State under subsection (7) may, in particular, specify local authorities as defined by Article 2 of the Family Law Act 1996 (Forced Marriage) (Relevant Third Party) Order 2009.”

Comments on clause 4

It is essential that anyone who agrees to anything, including mediation settlements, does so of their own free will and with the ability to understand what they are doing.

Accordingly clause 4 has my full support.

Clause 5

5 Intimidation of domestic abuse victims

(1) The Criminal Justice and Public Order Act 1994 is amended as follows.
(2) In section 51 (intimidation, etc., of witnesses, jurors and others), after subsection (10) insert—

“(10A) This section applies in circumstances including where the victim of a domestic abuse offence is assisting in the investigation of that offence or is a witness or potential witness in proceedings for that offence.”

Comments on clause 5

It is of course wholly wrong that victims of domestic abuse should suffer intimidation if they report it, or if witnesses are intimidated.

Accordingly clause 5 has my full support.

Clause 6

6 Falsely claiming legal jurisdiction

(1) The Courts and Legal Services Act 1990 is amended as follows.
(2) After section 118 (functions of Treasury), insert—

“118A Falsely claiming legal jurisdiction
A person who falsely purports to exercise any of the powers or duties of a court or, in the case of a purported arbitration, to make legally binding rulings without any basis whatsoever under the Arbitration Act 1996 (by which that person purports to have jurisdiction to make such rulings) shall be guilty of an offence and liable on conviction on indictment to imprisonment for a term not exceeding 7 years.”

Comments on clause 6

It is of course entirely wrong if anyone falsely acts in the manner specified in the clause. I would have expected existing law to already apply to such conduct.

If it can be shown that such conduct is not already a crime under existing law, then I would support criminalising such conduct as clause 6 does.

I do not have enough knowledge of other criminal sentence lengths to assess whether a maximum term of 7 years is an appropriate maximum sentence for the proposed crime, taking into account the sentences that apply to other crimes. I would appreciate others who have more knowledge addressing this point.

Clause 7

Clause 7 is a standard clause regarding when the law will enter into force, if enacted, and how it would be named. It requires no comment.

My view of the Bill overall

The bill is like the curate’s egg; it is good in parts.

Clauses 6, 5 and 4 should be welcomed by everybody.

Clauses 3 and 2 require no separate comments; they merely help clause 1 to be effective.

Clause 1 is the key clause in the bill. It would make several changes to the law, which need to be looked at separately.

Sub-clauses 1(6), 1(5) and 1(1) require no separate comments, just as clauses 3 and 2 require no separate comments.

Sub-clause 1(4) should be welcomed by everybody.

Sub-clauses 1(3) and 1(2) at first instance look completely reasonable if you believe that everyone should have full equal civil rights, which is something I believe very strongly. However one of the most fundamental civil rights is each individual’s personal freedom of religion. If a person, in this case an adult woman, of her own free will, wishes to enter into an arbitration process under which she would receive less equal treatment than a man, why should the law prevent her from doing so?

Furthermore sub-clauses 1(3) and 1(2) will, in my view, do nothing to help ameliorate either of the two key problems I listed at the beginning of this page:

  1. Some women have a civil marriage and a nikah (religious marriage) and the marriage fails. The wife is able to divorce her husband under civil law, but he refuses to grant her a religious divorce (a dissolution of the nikah).
  2. Some women have only a nikah without having a civil marriage. When the relationship fails, they find that they have no legal claims against the man, since the law (quite properly in my view) does not recognise the nikah as creating any legal relationship between the man and the woman.

Furthermore the Bill is seen by very many Muslims as “anti-Muslim.” Despite being written in scrupulously neutral language, it is clear from the text that Islam is the religion that the drafter of the Bill has in mind.

What should happen next

In my view Baroness Cox should herself put forward amendments that would delete sub-clauses 1(2), 1(3), 1(5), 1(6), clauses 2, 3 and the schedule.

That would leave a Bill whose operative parts would consist of the present sub-clause 1(4), and clauses 4, 5 and 6.

Such a reduced Bill would be welcomed by me. While it would not by itself solve the key problems I have mentioned, it would help somewhat. In reality I do not think that legislation offers an easy route to solving those problems; instead what is required is behavioural change encouraged by information dissemination by the state and by civil society organisations, Muslim and non-Muslim, with two key messages:

  1. Muslim women about to get married should insist that a civil wedding takes place before the nikah.
  2. Muslim women should insist that the nikah contract used is based on the model Muslim marriage contract because that agreement builds in the right of a woman to religiously divorce her husband and also prohibits the husband from taking a second wife during the duration of the first religious marriage.

If Baroness Cox is not willing to propose such amendments herself, they should be proposed by another parliamentarian.

While there is little risk of the Bill reaching the statute book in its present form, because the last few years have shown that it does not have Government support, were it to do so it would damage community cohesion in the UK in exactly the same way that the burqa ban has done in France. Even Baroness Cox’s continuing attempts to promote the Bill are damaging to community cohesion, although only to a limited extent as they have had relatively little publicity and it is only a Private Members Bill.

House of Lords debate - added 29 October 2015

The second reading debate of Baroness Cox's Bill took place on Friday 23 October 2015 and can be read in Hansard.

Although there are a number of Muslim members of the House of Lords, it is disappointing that only one spoke during the debate, Lord Sheikh. There were a number of speeches from other peers in favour of the Bill. The result is that the debate looks very unbalanced, particularly as all speakers were limited to five minutes. Accordingly the debate comprises five minutes of Lord Sheikh's perspective and many minutes of speeches praising Baroness Cox and the Bill, without any detailed analysis.

Most disappointing is that many peers came out with blanket condemnations of Shariah while displaying limited understanding of what it actually is. (See my piece "Shariah is more than a set of legal rules".)

Lord Faulks QC, Minister of State in the Ministry of Justice, responded for the Government. I was pleased to see that he considers the Bill is superfluous when it comes to dealing with the real problems, since what it seeks to legislate is already the law in almost all cases. Accordingly it is clear to me that the Bill is no more likely to receive time to progress during this Parliamentary session than in previous Parliamentary sessions.

 

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