Sunday, 12 June 2011

Arbitration and Mediation Services (Equality) Bill

Baroness Caroline Cox a member of the House of Lords has introduced into Parliament the Arbitration and Mediation Services (Equality) Bill (HL Bill 72) which is an attempt to deal with some of the perceived problems involving Shariah Tribunals which I have blogged about before and which were covered in a report by the Think Tank Civitas for which I wrote the introduction. However the Bill itself never once mentions Shariah and the changes it proposes would apply to all forms of Arbitration. Because it is a Private Members Bill rather than a Government Bill it probably has little chance of becoming law but it has certainly reignited the debate on Shariah Tribunals in Britain

The Bill on first sight appears to be a well thought out attempt to deal with the problems in a a targeted way and it proposes amendments to the Equality Act 2010, Arbitration Act 1996, Family Law Act 1996, Criminal Justice and Public Order Act 1994 and the Courts and Legal Services Act 1990.

The main proposal is in s4 of the Bill which states in unequivocal terms that Arbitration cannot deal with Criminal and Family law matters. That is in fact a statement of the existing case law which has not previously been set out in statute.

Section 5 of the Bill similarly seeks to deal with the situation where Shariah Rulings have been enforced by the Civil Courts in the pretence that they reflect mediated agreements rather than acquiescence in directed judgments and it requires Family Courts to satisfy themselves properly that a mediation agreement is indeed made by both parties freely and with full knowledge of their specific legal rights. The misuse of Mediation agreements as a backdoor way to introduce Shariah into UK Family Law is again a problem I have Blogged about previously.

The amendments to the Equality Act complement the amendments to the Arbitration Act by making discrimination on grounds of sex unlawful in Arbitration in particular by making it unlawful to treat the evidence of a woman as automatically of less value than the evidence of a man or vice versa and also making it unlawful to Arbitrate in inheritance disputes on a basis that presupposes that women should automatically inherit less than men or vice versa. These changes are clearly specifically aimed at Shariah Tribunals because of the historic Shariah law principles that the evidence of a woman is worth only half that of a man. Once again though this proposal is clearly aimed at Shariah Tribunals the word Shariah is never mentioned and the basic principle of equality is difficult to argue against.

Particularly interesting and imaginative however is the proposal in s1(4) of the Bill which would amend the so called "public sector equality duty" in s149 of the Equality Act which gives public authorities a specific duty to take steps to minimise inequality. The Bill proposes that public authorities should be under a legal duty to take steps to prevent polygamous marriages and to inform parties in unregistered religious marriages that they have few legal rights compared to a spouse in a registered marriage. I wonder if this might even lead Police and other authorities to start implimenting s75 Marriage Act 1949 which makes it illegal to perform unregistered marriage ceremonies. In a conference I attended recently I was surprised when one of the Muslim delegates delegates quite openly stated that the reason Muslim Marriages were not being registered was in order to permit Polygamy.

I have somewhat more concerns over sections 6 and 7 which deal with proposed changes to the criminal law. I frankly cannot see the point of the proposal in s6 since s51 Criminal Justice and Public Order Act 1994 already deals with the intimidation of witnesses in cases of domestic violence and I have never seen any suggestion to the contrary. I also have problems with s7 which proposes to make it a criminal offence where anyone

(a) falsely purports to be exercising a judicial function or to be able to make legally binding rulings, or

(b) otherwise falsely purports to adjudicate on any matter which that person knows or ought to know is within the jurisdiction of the criminal or family courts.

I don't have any major problems with (a) though if any person was falsely claiming to be exercising a judicial function and receives payment for it that would already be an offence of obtaining by false pretences. I do however have real problems with (b) since it could make it very difficult for religious courts such as Jewish Beth Dinn or Catholic Marriage Tribunals both of which deal with purely religious Divorces (Jewish) or Annulments (Catholic) and do so only after the Civil Courts have dissolved the marriage. There is also the possibility that a strict definition of the proposed offence could even prevent employers holding internal disciplinary hearing dealing with alleged criminal acts by employees such as theft at work. On balance I think (b) goes too far but I am prepared to accept (a)

The major question is I suppose whether Caroline Cox is in fact interfering in Freedom of Choice ie the principle that people should have the freedom to choose private adjudication of their disputes without the law interfering. That is certainly what the opponents of her Bill will say and was in fact a major point that we discussed at a conference on Shariah I attended earlier in the year. The consensus we arrived at was that if the adjudication, whether Arbitration or Mediation, is ultimately going to be registered with the Civil Courts and enforced by them then the Civil Law does have a right to become involved and to say what legal rules or principles should apply to the making of a decision which the State is being asked to enforce.

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