Arbitration and Mediation Services (Equality) Bill [HL]

Baroness Deech Excerpts

Friday 19th October 2012 Lords Chamber

[Baroness Deech]

My Lords, I very much welcome this Bill and appreciate all the hard work and research that has gone into it. I join others in applauding the bravery of the noble Baroness, Lady Cox, whose record in speaking up for human rights and the oppressed is magnificent. While we are adjusting to multiculturalism—I think that in the future I will have to think of it as multibacterialism—in this country, there are some ground rules, some lines that cannot be crossed, no matter how compelling the religious practices at issue. Thus, the equality law of this country has caused, for example, Catholic adoption agencies to close because human rights trump religious beliefs in matters of equality. Very recently, the same test was applied to whether two men could share a room in a bed and breakfast rented out by a couple with religious objections.

The Bill has to face up to the difficult issue of drawing a line between good helpful mediation and arbitration on the one side and, on the other, the processes and principles that are contrary to equality law. Religious bodies certainly should not claim to deal with criminal offences or claim exclusive jurisdiction over civil issues, but much turns on the power and knowledge of those who appear in the courts, and we have to assume vulnerability in many, if not most, instances. Mediation can help in family law disputes provided that the parties meet on equal terms. Arbitration, however, may perpetuate irregularity of status that goes down the generations to the disadvantage of children if it is presented as the legal solution to a situation that needs finality in civil law.

In this Bill, the fundamental principles of British equality and respect for the rule of law, which imply one law for all, are fleshed out and serve as the parameters. Religious courts of all persuasions have to be subservient to the family law of this country. Yes, agreements can be reached and acted on with consent or presented to the court for enforcement, but we cannot allow shadow, and possibly unfair, family law and marriage law to go on sub rosa, to the detriment, in particular, of women and children. Their status, their dignity and their support have to be open under the law. They must have access to our courts, without being blocked, to enforce their family law rights. Each person in this situation needs to have knowledge about their situation and their rights in our common law in a language that they can understand. They must not be coerced into religious law, any more than any citizen should ever be coerced. In our law, duress vitiates contracts and marriages whoever you are.

Members of any religious community must not be left with the impression that they are outside the law of the land. For example, it is suspected that many marriages are entered into which are valid only under religious law and not under civil law. That must be wrong. There needs to be an effort to ensure that all religious marriages are properly celebrated under English law and polygamy is stamped out. There is no reason why all, or more, mosques should not register for legal civil ceremonies.

The law is encouraging private agreements in family disputes through prenuptial agreements and in relation to children’s residence and money. This is partly in order to save legal aid and partly in the interests of harmony. However, these agreements are made in the shadow of English law and can always be taken to court. There may be loopholes in the drafting of this Bill, but I understand that it is intended to try to assist with the fall-out effects of unrecognised marriages. I am sure wording can be found to ensure that that is the case.

The Bill has the support of a group mentioned earlier by the noble Lord, Lord Carlile, Southall Black Sisters, a black and minority women’s organisation that has existed since 1979 and has a national reach. Indeed, it thinks that it does not go far enough. It points out that cuts in legal aid will have the effect of causing more women and vulnerable people to use religious courts, which are, by and large, cheaper, and that these people will not be able to afford civil legal advice. This is another adverse effect of the drastic cuts in legal aid that have come about in recent years. This risks the growth of a second-rate justice system for minority communities, one which is not compatible with universal human rights principles. Southall Black Sisters is well aware of how women may be coerced into going before religious bodies and accepting decisions that are not in their interests within a system that lacks transparency and accountability and offends against the rule of law.

This Bill is important and will be welcomed by thousands who know about it and by many more who may be unaware of it but could benefit. I urge the House to progress with it.

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[Lord Gardiner of Kimble]

My Lords, I thank the noble Baroness, Lady Cox, for bringing this matter for debate in the House today and explaining why she wants to see the measures in her Bill come into force. Her support of women’s rights across the world is well recognised and I admire her courage and determination in seeking decency and justice.

I have listened carefully to all the points that noble Lords have made, yet the Government have reservations as to whether the measures in the Bill are the best way forward, some of which have already been articulated sensitively by the right reverend Prelate the Bishop of Manchester.

The noble Baroness’s Bill is driven by the concern that all citizens should have the same rights. It has been suggested that religious law principles applied by arbitral tribunals and religious councils in this country may undermine the principle of equal rights under the law. Let me make it quite clear that religious principles can be applied legally in the national courts context only if both sides have freely agreed to be bound by them. Regardless of religious belief, every citizen is equal before the law.

The Bill prohibits the use of arbitration in family disputes. The Government, like their predecessors, are keen to promote the use of non-court dispute resolution services for family and other disputes. Typically this is through mediation. However, couples, communities and other groups have the option to use arbitration and to apply religious considerations. For example, the Jewish Beth Din has long been recognised as able to conduct arbitrations applying Jewish law considerations. The Muslim Arbitration Tribunal, established in 2007, provides an alternative route to resolve civil law disputes in accordance with Sharia principles. In both cases this is because the Arbitration Act 1996 allows parties to an arbitration to agree any system of law or rules, other than national laws, to be applied by the arbitral tribunal. Crucially, both parties must freely have agreed to arbitration and to the use of religious principles. Even where religious law considerations have been applied to an arbitration, the resulting decisions are subject to review by the national courts on a number of grounds, including whether the agreement was freely concluded.

Religious councils that are not governed by the provisions of the Arbitration Act are different. The recommendations of religious councils such as Sharia councils and the marriage tribunal in the Catholic Church are not binding in law because of this. Such recommendations are subject to the law of the land.

The noble Baroness raised concerns over coercion. No one should feel pressurised or coerced into using a Sharia or other religious council to resolve their dispute. Any member of any community has the right to refer to a civil court at any point, particularly if they feel pressured or coerced to resolve an issue in a particular way. If there has been coercion, the outcome of any mediation or arbitration cannot be enforced.

The noble Baroness, Lady Cox, has raised concerns about religious councils adjudicating on matters of domestic violence and violence against women. Quite clearly domestic violence is a dreadful form of abuse and is unacceptable in our society. We are determined to do all we can to tackle it and the Government’s approach is set out in the action plan Call to End Violence Against Women and Girls. It is essential that victims and potential victims are aware of the support and advice available. Indeed, the Government have been working with many groups on this. The Government are working with statutory, faith and other organisations to ensure that messages reach across all communities.

Many of the issues that the noble Baroness, Lady Cox, raises are already addressed in existing legislation. For example, the Equality Act prohibits discrimination on the grounds of sex. The Criminal Justice and Public Order Act prohibits intimidation of all witnesses. Common law already restricts what can be arbitrated and the Government have no plans to change this. Several noble Lords raised consent orders being checked by the courts. The court is under a duty to question any order which appears unfair and can refuse to make the order.

Turning to the specific proposals in the Bill—and answering the question of the noble Baroness, Lady Thornton— in Part 1 changing the Equality Act so that it applies to arbitral tribunals is considered unnecessary. Under the Arbitration Act tribunals must act fairly and impartially. Awards can be challenged in court if this duty is breached or there is other irregularity. Section 142(1) of the Equality Act already makes contracts unenforceable if they treat someone in a discriminatory way. This would apply to the results of mediations facilitated by a religious council if they were discriminatory. A consultation under Section 149 of the Equality Act is under way to establish whether the public sector equality duty that it creates is operating as intended. It would be wrong to amend Section 149 while the Government are carrying out such a review.

Turning to Part 2 of this Bill, arbitral tribunals must act fairly and impartially and can apply religious considerations only if all parties agree. It is already the common law that criminal acts and some family matters, such as child residence and contact, cannot be arbitrated. As I said, it is government policy to encourage alternative dispute resolution, including arbitration in limited circumstances to resolve family matters. However, it is important for people to be aware of their rights under our country’s legal system. In Part 3, the proposed changes to the Family Law Act 1996 are deemed unnecessary, as contracts are unenforceable if made under duress. The judge will not make an order unless he or she is satisfied that there was consent and equal bargaining power between the parties.

In Part 4, Section 51 of the Criminal Justice and Public Order Act already makes it an offence to intimidate those assisting an investigation, witnesses and potential witnesses. This includes victims of domestic violence.

In Part 5, I finally turn to the proposed new crime of falsely claiming legal jurisdiction. The Government believe that introducing the proposed offences is unnecessary. This is because Sharia councils and other religious councils have no jurisdiction in this country, therefore any decision they make can never be legally binding. If any decisions or recommendations made by any religious councils or arbitration tribunals were illegal or contrary to public policy or national law, then national law would always prevail.

[Baroness Deech]

The noble Lord, Lord Gardiner, has said more than once that if something improper happened in a religious court, the courts of the land would ignore it or undo it. Is not the problem that those who have these religious orders made will never know about the courts of our land or will never get to them? Therefore the English courts do not have the supervisory power that the Minister has suggested and which we wish they had.

[Lord Gardiner of Kimble]

I am most grateful to the noble Baroness, Lady Deech, because that is precisely what I wish to come to. I was setting out what I call the legalistic frame of why the Government have reservations about the Bill’s provisions, but I assure the noble Baroness that there is much more to come.

Increased awareness requires changes to society, not changes to the law. This means that it is not just a job for the Government. Communities and community organisations must also give a lead in communicating so that the rights of all our citizens are understood and protected. The Government are committed to working with communities and faith groups to take this forward. Practical co-operation between faith groups is crucial to the integrated society we want to build. It is about people from different backgrounds working together for a common good and tackling shared social problems.

The Government work with many faith bodies: the Church of England, the Catholic Bishops’ Conference, the Board of Deputies of British Jews, the Network of Sikh Organisations UK and national Muslim organisations including the British Muslim Forum, Muslim Hands UK and the Mosques and Imams National Advisory Board. Perhaps I may also say, as noble Lords have referred to the Southall Black Sisters, that the Government have worked in conjunction with that organisation and others to raise the points made particularly by the noble Baroness, Lady Deech, and other noble Lords, and in formulating, among other things, an information pack to ensure that rights are better and more widely known.

Noble Lords have also highlighted their concern about those Muslim marriages which are not registered. These are not legally valid in England and Wales and do not enable parties to seek a financial settlement in the family court if the marriage breaks down. The Government are aware of the problem and the great hardship it can cause. As a result, the Government are examining ways to increase awareness of the legal consequences of religious-only marriages so as to ensure that the rights of families and children are protected. The Department for Communities and Local Government also works with local bodies such as the St Philip’s Centre in Leicester and the East London Three Faiths Forum. These bodies, along with many others, do excellent work to encourage and help link up faith-based social action, including people from different ethnic, religious and cultural backgrounds.

For all the reasons I have set out, the Government are not convinced that introducing the measures proposed in this Bill—