English law already makes provision for sharia councils
18 February 2008
The media storm surrounding the Archbishop of Canterbury's speech about sharia in the English legal system is understandable, bearing in mind what he calls the "unclarity" in its delivery.
In the context of the current debate, English law is capable of adapting to certain religious precepts and principles. The idea of 'interactive pluralism' - the central theme of the Archbishop's speech at the Royal Courts of Justice - is therefore very much alive within the English legal framework.
The evolving character of English law means it is inclusive and adaptable as dictated by political, economic or social circumstances prevailing over a given period.
Nowhere is this more obvious than in the sphere of finance. Given the exponential growth of the Islamic financial industry globally, and in its bid to maintain the status of the City of London as a global financial centre, the UK Government has undertaken a major exercise to study and implement reform to the existing tax regime to ensure that English law accommodates the unique character of Islamic finance principles.
As a result the finance acts passed since 2003 have made provision to ensure that the tax treatment of certain Islamically compliant structures - such as mortgage or bond products - are on a par with a conventional product offering a similar economic consequence. It should be noted that the law has been implemented without any specific mention of sharia, and certainly without having to create a dual system running alongside English law.
In the area of dispute resolution, the Arbitration Act 1996 provides an ideal platform within the confines of the English legal system whereby individuals can agree to select particular arbitrators to settle their disputes.
Such arbitrators need not be lawyers and are often specialists in the particular area of dispute. In order to enjoy the status granted to an arbitration panel under English law, and in order for an award to be enforceable in the English courts, the arbitrators have to abide by the procedural rules set out in the act, while their decisions are capable of review by the English courts, especially in areas relating to matters of public policy.
The Islamic Sharia Council based in Leyton, East London, for example, has become a forum of choice for some Muslims to settle their disputes under Islamic principles. However, as the council does not constitute itself as an arbitration panel, and thereby follow the procedural requirements set out in the Arbitration Act, its decisions are not enforceable in the English courts, leaving disputing parties unable to protect their rights outside of this informal setup.
But a new system of law would not be needed to change this, as the Arbitration Act does not prevent the arbitrators considering sharia in the determination of a dispute.
Harmonious interaction between English law and sharia can also be seen in dietary laws. English law - ie the Welfare of Animals (Slaughter or Killing) Regulations 1995 - has given recognition to the religious requirements of the Jewish and Muslim communities and allows slaughtering of animals according to the kosher or halal method.
While the examples cited above do not point to any conflicts between religious laws and English law (although animal rights campaigners might disagree), the suggestion of introducing Islamic courts to settle disputes involving Muslims has caused disquiet.
However, as described above, there are many examples whereby English law has given religious communities the ability to operate according to their beliefs while at the same time providing them with the certainty and protection that comes with English law without causing any disintegration of our society.
Neil D Miller, partner, Norton Rose
Written with the assistance of Norton Rose senior associate Davide Barzilai