The Spectre of Shari’a

Chapter 2
The Spectre of Shari’a


Although Baroness Cox’s Bill (discussed in Part II), is not apparently aimed at Muslim institutions, it will become clear that, despite claims to the contrary, Shari’a is what it is about. Of course, she is not the first public figure to voice concerns about Shari’a, and more generally Islam(ism), in the West. Against the background of the Rushdie Affair, 9/11, wars in Iraq and Afghanistan, bomb attacks in Madrid and London and controversies over the Danish Cartoons or films such as the Innocence of Muslims, the reaction to the Islamic presence in Europe seems increasingly apocalyptic, the expectation of imminent catastrophe apparent in vocabulary such as ‘Eurabia’ (Ye’or 2001), ‘Londonistan’ (portraying the UK capital as a haven for Islamic fundamentalists, Phillips 2006), and ‘dhimmitude’ (the status of a non-Muslim in an Islam-dominated society). Stories that Muslims want, and will soon achieve, the implementation of Shari’a illustrate this. ‘In a decade’, averred Christian commentator Patrick Sookhdeo, ‘you will see parts of English cities which are controlled by Muslim clerics and which follow, not the common law, but aspects of Muslim sharia law’ (Sunday Telegraph, 19 February 2006).

From c. 2006 onwards there have been numerous occasions when the ‘Islamization’ of Britain through the recognition of Shari’a has become the subject of public debate. Five years after his prediction, for example, Sookhdeo’s nightmare seemed to be coming to fruition. ‘When David Cameron speaks of “localism”’, wrote Ross Clark in the Express in July 2011,

I don’t think he quite has in mind the yellow notices fly-posted on lamp-posts in parts of East London over the past few days. ‘You are entering a shariah controlled zone’, they read. ‘Islamic rules enforced. No alcohol. No gambling. No music or concerts. No porn or prostitution’ … As far as the liberal Left is concerned sharia law is just another bit of diversity we should celebrate in multicultural Britain (2011).

This referred to the activities of a militant Islamist group, Muslims Against Crusades, led by the radical cleric, Anjem Choudary, previously associated with the banned Islam4UK. Under the headline ‘Islamic extremists declare Britain’s first Sharia law zone’, the Daily Mail reported another incident in North London:

Today, [Abu] Izzadeen, the self-styled ‘Director for Waltham Forest Muslims’, will march with his supporters – many of them new young recruits to Islam – as part of their campaign to make the suburban borough into Britain’s first Sharia-law zone. Under his brutal set of rules, there would be a ban on alcohol, gambling, drugs, music, smoking and homosexuality, as well as on men and women mixing in public … Izzadeen says: ‘This is the first step towards turning Britain into an Islamic state. There are nearly three million Muslims in this country. Islam is a sleeping giant that is waking. We have moved on from the debate about the provision of halal meat to more political issues. Twenty-five areas around Britain have large Muslim populations … We want to turn them all into Islamic Emirates, where the excesses of Western civilization are not tolerated’.1

The article cited a comment from Baroness Cox (‘As the Muslim population has grown, and the state-sponsored creed of multiculturalism has become ever more powerful, so Sharia law has strengthened its grip on our society. This is a recipe for disaster’), and quoted Alan Craig, a former local councillor and leading figure in the campaign against the building of a nearby ‘mega-mosque’ (Bowen 2014):2 ‘This is the public tip of a hidden iceberg … I would like to think that the [poster] campaign is orchestrated by extremists, and is only supported by a small group of their followers; but I fear that it is not the case’. Shortly afterwards Craig told the Daily Telegraph:

I can no longer walk to my local shops and find anywhere to buy conventional, non-halal meat. Posters at bus stops of swimwear models are spray-painted over with a burka. The pavements are crowded with women wearing not just the face-veil, but black gloves to hide their hands.3

These reports coincided with an announcement that a government inquiry into Shari’a councils had been abandoned, ostensibly because of lack of cooperation on their part.4

Shari’a: Claims for Recognition

Although Sookhdeo’s comment was made during the Danish Cartoons controversy, it was principally in response to a poll which reported that 40 per cent of Muslims would welcome the introduction of Shari’a in predominantly Muslim areas in Britain (see inter alia Field 2007: 466 ff.) Claims for the recognition of Shari’a-compliant practices in Britain are in fact of long standing. In the 1970s, the Union of Muslim Organizations of UK and Eire had organized a petition calling for the availability of Muslim family law in Britain, published in 1983 as Why Muslim Family Law for British Muslims (Badawi 1995; Nielsen 1995, 1999; Poulter 1990, 1998; Yilmaz 2001); a leading Muslim, Dr Syed Aziz Pasha,5 also prepared a paper (in 1977) establishing the rationale for the recognition of Shari’a. There was, however, little evidence of any actual demand (Nielsen 1999: 79–82); when Sheikh Zaki Badawi,6 subsequently a leading figure in an early Shari’a council, drew up a template for an Islamic will to be used in Britain, it was not adopted. Nielsen suggests there were demographic reasons for this lack of interest and adds his impression that at the time Shari’a was mainly a matter for those aspiring to leadership of the Muslim community. It was during the 1990s and into the 2000s, while Islam was experiencing a much higher profile, globally and locally, that calls for the availability of Shari’a in family matters became more clamorous, in line with the growth of the Muslim family population with a background in, and continuing, transnational ties to South Asia (especially Pakistan), where Muslim family law is available and supported by Islamic courts (inter alia Poulter 1998).

The Union’s petition had in fact been rejected by the then Government on the grounds that one law should apply to all, though as the late Sebastian Poulter (1990) pointed out, special provisions existed for Jews and Quakers, for example in the case of marriage ceremonies. Other objections concerned uncertainty about which tradition of Islamic law would apply, whether cases would be adjudicated in English or special Muslim courts and about gender inequalities in marriage and divorce. Claims for the recognition of Muslim legal and ethical norms indeed raise difficult questions concerning the nature and status of Shari’a (see Chapter 12), but Poulter urged that while there was little likelihood of a system of personal law being instituted, Muslims should ‘bear in mind just how flexible and accommodating many of the provisions of English law are’ (1990: 164). There was a great deal of room for ethnically specific practices (Poulter 1986), and that the law encouraged the settlement of family disputes outside the courtroom allowed space for some, if not all, Islamic principles such as mediation and reconciliation. Other practices (for example regarding the solemnization of marriages) might be accommodated through changes in legislation.

Nonetheless, during the 1980s and into the 1990s demands for the recognition of Islamic practices became more pressing. In 1993, for example, the UK Action Committee on Islamic Affairs published a paper on ‘Muslims and the Law in Multi-faith Britain: Need for Reform’, which dealt with religious and racial discrimination, and called for a strengthening of the Race Relations Act to criminalize religious vilification. It was not concerned with Shari’a as such, but drew attention to the need to observe religious dress codes in school and at work, and allow time off for Friday prayers, religious festivals and the hajj. There was, moreover, an increasingly influential strand of opinion among Muslims who believed that they were living in an immoral society and must protect their families through the availability of Islamic law (Poulter 1990). Thus, by 1995 Nielsen felt able to state that ‘uniquely in all of Western Europe, the practice of Islamic family law as a Muslim right has been raised in Britain’ (1995: 53), attributing this partly to the persistence of transnational marriages and the complex legal situations these created (Balzani 2006; Charsley 2012, 2013). Another draft Islamic will was, for instance, published in the mid-1990s (Bewley et al. 1995), and nowadays detailed guides are available on the Internet.7

These claims, which were not unanimously supported by Muslims, were frequently misinterpreted. When, in 2006, delegates met a Labour minister to discuss tackling extremism, it was widely reported that they had advocated adopting Shari’a, though the proposal was made by one member only (from the Union of Muslim Organizations), and opposed by the Muslim Council of Britain (MCB). It was, commented Osama Saeed,8 a ‘godsend for those who love bashing Muslims’. Maulana Shahid Raza, Chair of the Mosques and Imams National Advisory Board (MINAB9), later clarified the position:

Muslims in this country have been campaigning for a long time for the acceptance of certain aspects of Shariah law, particularly in the realm of personal law – laws in respect of marriage, divorce and inheritance. We are not asking for the introduction or the acceptance of Islamic criminal law … They may be some single, isolated voices in this regard, or maybe the media has been enjoying this sort of hyperbole [But] I do not know of any Muslim organization demanding the law of hudood [Islamic capital punishment] (in Ashraf-ul Hoque and Shah 2012: 24).

Nonetheless, as Bowen notes (2010a: 8), these limited claims:

represented a sharp challenge to English ideas of a common law. If Muslims were to handle marriage and divorce themselves, then the civil courts would in effect be ceding territory to them. ‘Why don’t they just let us take care of these matters’, said one Pakistani scholar to me in London; ‘after all, that’s what they did in colonial days’.

‘Understandably’, adds Bowen, ‘English judges are reticent to take this step’. Moreover, such advocacy now met strident opposition. When in March 2014 the Law Society published a practice note for solicitors on drawing up Shari’a compliant wills, there was an outcry.10 Some MPs called for a parliamentary inquiry, a question was asked in the Lords11 and One Law for All (see below and Chapter 8) organized a protest meeting and open letter calling for the advice to be withdrawn.12 In its defence, the president of the Law Society wrote:

We live in a diverse multi-faith, multi-cultural society. The Law Society responded to requests from its members for guidance on how to help clients asking for wills that distribute their assets in accordance with sharia practice. Our practice note focuses on how to do that, where it is allowed under English law … [the law] will give effect to wishes clearly expressed in a valid will in so far as those wishes are compliant with the law of England. The issue is no more complicated than that.13

Nonetheless, the Solicitor’s Regulatory Authority subsequently removed references to the practice note in its advice to solicitors, a decision welcomed by One Law for All and others who noted that this followed ‘threatened legal action on gender equality grounds and represents an important step in our campaign against the Law Society’ (One Law for All Press release, 14 July 2014). Finally, the Law Society announced that it had ‘reviewed the note in the light of criticism. We have withdrawn the note and we are sorry’ (Law Society press release, 24 November 2014; see also Daily Telegraph, 24 November 2014). Increasing claims faced increasing resistance.

The Rise of the Shari’a Councils

In 1978, when Zaki Badawi was director of the Regent’s Park Islamic Centre, a ‘small group of imams and myself … started to try to resolve issues of conflicts of laws’ (Badawi 1995: 77–8; Keshavjee 2007). They sought to include representatives of the different Islamic schools of law (Hanafiyya, Malikiyya, Shafiyya, Hanbaliyya) and take into account the school which those who sought their assistance preferred, while ‘giving that person the views of other schools of law and advising the person to select’. This became the Muslim Law (Shariah) Council (UK) [MLSC(UK)] originally based in Ealing, West London.14 Another council, the Islamic Sharia Council [ISC] in Leyton in North-East London, was founded in 1982 (by Suhaib Hasan and Syed ad-Darsh15) as a forum through which UK Muslims might obtain advice on the application of Shari’a principles, and have disputes settled. Its objectives are:

To advance the Islamic Religion by: Fostering and encouraging the practice of the Muslim faith according to the Quran and the Sunnah. Providing Advice and assistance in the operation of Muslim Family. Establishing a bench to operate as the Islamic Shari’a Council and to make decisions on matters of Muslim family law referred to it. Doing all such other lawful things as may be in the interest of promoting the proper practice of Muslim faith in the United Kingdom. To educate the public generally in the field of the Muslim family law and to foster and disseminate information in that field.16

The scholars attached to its associated centres ‘represent all major schools of thought among the Sunnis’ (Ibid.).

Such bodies, often closely tied to mosques, attracted little academic attention until the early 2000s, with Sonia Shah-Kazemi’s pioneering account of the MLSC(UK) and its clientele (2001).17 From the mid-2000s there was a plethora of studies by legal scholars and anthropologists including Samia Bano, Juliet Billaud, John Bowen, Mohammed Keshavjee, Maleiha Malik, Federica Sona and Gillian Douglas and her colleagues (see also Ansari 2004; Cesari, Caeiro, and Hussain 2004; Kennett 2011–12, Khaliq 2002; Khir 2006; Poulter 1998; Yilmaz 2003, 2005; Zee 2014).18 All have shown that the councils are principally concerned with advising on Islamically appropriate practices around marriage, but also offer guidance on the religious propriety of issues ranging from intravenous fertilization to trading in shares. At the same time, they claim to avoid recommendations which might bring them into conflict with civil courts over such matters as the custody of children, even if the laws of the land ‘do not reflect our religious aspirations’ (in Shah-Kazemi 2001: 59).

A major task of the councils (indeed their raison d’être) relates to applications for a religious (not civil) divorce principally on the part of women, which would confirm their status as devout Muslims and enable them to remarry (see Chapter 5). As Douglas et al. put it: ‘being able to remarry within the faith serves both to enable adherents to retain their standing within their faith community and to regularize their position with the religious authorities’ (2013: 195). However, their interventions concern only a tiny fraction of all divorce settlements. As High Court Judge Sir Andrew McFarlane (2011) has pointed out, whereas Shari’a councils perhaps handle several hundred cases annually, the number of divorces in England and Wales (Muslim and non-Muslim) far exceeds 100,000. Though some marriages which come to the attention of the councils are of long standing, others involve (typically arranged) marriages where it has soon become apparent that the relationship is unsatisfactory. These may also be transnational marriages where the Islamic marriage ceremony (nikah) or the divorce has been performed overseas and clients are uncertain as to whether or not their status will be recognized (Charsley 2013). Khir (2006) reports an unpublished study which claimed that the ISC had taken on 8,000 cases since its inception, and cited the main grounds for divorce as addiction, domestic abuse, financial problems, adultery, desertion, impotence and ‘incompatibility’; a third concerned alleged lack of consent. In 2010–12, when the ISC was receiving some 600 applications annually, about a quarter from men, the reasons were very similar, with some 30 per cent citing domestic violence.19

By contrast with English courts which operate with an adversarial system, Shari’a councils seek to investigate and uncover the truth, and where possible mediate or foster reconciliation. Indeed the reconciliation of disputing parties is a basic principle underlying the councils’ proceedings, even if this is not something that a woman who approaches the council in pursuit of a religious divorce really wants (Bano 2007). As Malik observes, women may find themselves ‘“conciliated” back into violent or coercive relationships’ (2008b: 21), a controversial matter discussed in later chapters.

Shari’a councils differ in outlook, with some rivalry between them, and there may be internal differences of approach on religious grounds and/or between generations. Their number is disputed (see p. 144). Bano, who sought to locate institutions where Shari’a-related advice on family matters was offered, looked in depth at the work of four councils and more briefly at 20 others (2012a, 2012b). Some are very informal, others, like the ISC and the MLSC(UK), or the Shariah Council of the Birmingham Central Mosque and the Muslim Arbitration Tribunal (MAT), are highly organized with websites, forms to fill in, fees to be paid, meetings to be attended and extensive written rules of procedure. Indeed, council members sometimes complain they are being pushed by internal and external forces towards bureaucratization (and transparency), especially if they want their proceedings to be acceptable in the eyes of the law. At the Temple Church Book Launch (2013: 17), the former judge, Baroness Elisabeth Butler-Sloss,20 for example, said while family courts would be prepared to take on board the rulings of Shari’a councils, there needed to be clarity about decision-making ‘so that, when a case gets to the English Courts, the Courts can know that they can accept a particular agreement between the parties rather than re-investigating it themselves’. Shari’a councils also needed to show that they were ‘absolutely fair’ to both men and women:

Clearly, women who lose are likely to say, ‘I wasn’t fairly treated’; but there are women out there who are not fairly treated. How are we to differentiate between those who have been and those who have not? This is a really serious question. We ought not to be saying Sharia Councils should not be listened to; they are an important part of one of the communities in this country. But we do need to know – this is of the greatest importance – that what they’re doing is transparent and can be accepted generally.

Partly in response to such demands, a UK Board of Shariah Councils was established in January 2014 at a meeting which brought together representatives of 13 councils seeking to ensure better standards and perhaps institute a ‘court of appeal’.21 While councils such as the ISC accept that transparency is necessary for their acceptance (Bowen 2013b), their very professionalism may make them seem ‘dangerous and chilling’, as Pragna Patel of the Southall Black Sisters (SBS) put it.22 In practice, however, they have very little power, with ‘no community mechanisms or sanctions’ to uphold any ruling they make (Bano 2012a: 255).

It is unclear whether such councils are a British-South Asian, even British-Pakistani, phenomenon; the enthusiasm for them on the part of British residents with Pakistani background perhaps reflecting experience with similar bodies back ‘home’. Certainly other religious minorities rely instead on family meetings, and (rarely) mediation via religious leaders; Sikhs, for example, make no claims for a separate, non-secular, legal system (Jhutti-Johal 2013). Elsewhere in Europe Shari’a council roles in matters such as divorce are likely to be undertaken informally, perhaps by an individual Imam (see Arvidsson 2011 on the Islamic Centre in Malmö, Sweden, and Mehdi 2005 and Liversage 2012 on Denmark), though petitioners may also refer their case to the British Shari’a councils (Badawi 1995; Fredriksen 2011; Shah-Kazemi 2001). Councils are certainly found in growing numbers in the USA (Zaman 2008), and Australia. In Canada in 2003–04 there was a much-disputed proposal by the Islamic Institute of Civil Justice to establish a Darul-Qada (a ‘Muslim Arbitration Board’), which would tackle disputes about family matters in accordance with Islamic legal principles. The Board would be constituted under the Canadian Arbitration Act and its rulings legally binding.23 There was a major public debate (Korteweg and Selby 2012; Razack 2008a; Ruby 2013), and although a commission of inquiry (Boyd 2004, 2013) recommended the availability of such arbitration fora in family and inheritance cases, this was rejected outright by the Ontario Premier, Dalton McGuinty, in a much cited declaration that ‘There will be no Shariah law in Ontario. There will be no religious arbitration in Ontario. There will be one law for all Ontarians’.

‘Councils’ or ‘Courts’?

In a discussion on the BBC’s religious affairs Sunday programme (see p. 214), two participants hostile to the councils consistently called them Shari’a courts, while another (Amra Bone), equally consistently, called them councils, and carefully distinguished them from civil courts. This was one of many occasions when, despite protestations to the contrary, opponents persist with ‘courts’ when they themselves use ‘council’ (or ‘tribunal’): ‘Councils as you call them, or courts’, as Minette Marrin put it in a television debate with a Muslim cleric, Mufti Barkatulla.24 Likewise, in ‘Secrets of Britain’s Sharia Councils’, a BBC documentary (hereafter cited as Panorama 2013), which sought ‘to investigate the practices of the nation’s Islamic religious courts’, a voice-over describing a consultation at the ISC observed that a leading Imam at the council (Suhaib Hasan), ‘sits on a dais above the woman, like in a court’ (my transcription); ‘Sharia court tells “abused wife” to stay’ (emphasis added), reported one newspaper.25 Sometimes speakers hesitate between courts/councils, using them alternately or ‘correcting’ their usage, as did Alan Craig on the Islam Channel (2012). The following exchange in the House of Commons further illustrates confusion over terminology (again emphases added):26

Andrew Rosindell (Conservative): To ask the Secretary of State for Justice what recent discussions he has had on Shia [sic] courts in the United Kingdom; and if he will make a statement.

Bridget Prentice (Labour): It is assumed the hon. Member is asking about Sharia councils. Sharia councils do not describe themselves as Sharia ‘courts’ because they do not have powers to enforce their decisions. Sharia councils are not part of the court system in England and Wales.

According to Bano, council members usually avoid the term ‘religious judge’ so as not to create doubts over the council’s legal status, and were critical of one Imam who claimed to be a ‘judge of the Muslim Supreme Court in this country’ (2012a: 269). Terminological confusion is not confined to non-Muslims, however. One MAT publication (2008) makes frequent use of the term ‘judges’, and offered a somewhat misleading account of Panorama 2013, under the headline ‘Shari`ah Courts Ignite UK Marriage Debate’.27

Shari’a in the Public Eye

By the mid-2000s Shari’a councils began to intrude into public consciousness as a matter for concern, along with other matters Islamic. In 2006, for example, controversy arose over the apparent discovery of what was called ‘an unofficial Somali court’ (gar or ghar) in London, reported in an edition of the BBC programme Law in Action.28 The programme claimed that ‘Ethnic and religious courts are gaining ground in the UK’, and asked: ‘Will this lead to different justice for different people?’ The report quoted a Somali youth worker, described as the court’s ‘convenor’, who had ‘lived in the UK for the past 15 years, but feels more bound by the traditional law of his country of birth – Somalia – than he does by the law of England and Wales’: ‘Us Somalis, wherever we are in the world, we have our own law. It’s not Islamic, it’s not religious – it’s just a cultural thing’. A similar report was carried by a later BBC programme Inside Out on the Shariah Council of the Birmingham Central Mosque, which also discussed a local Somali ghar:

Parallel system. Some of Birmingham’s Somali population use an informal court called a ‘ghar’, which is made up Muslim elders, to help resolve disputes between members [But] a community worker in Sparkhill, says these informal courts have also dealt with criminal matters. ‘What the ghar people do is solve the problems among themselves and do not involve the police or the criminal justice system. One Somali man stabbed another person and it was dealt within the ghar. When a British person or another member of society commits the same crime he is punished in prison. It’s not fair.29

The precise status of a gar is disputed. Somali activists argue, seemingly fruitlessly, that it is not a Shari’a council, or indeed any kind of religious tribunal, but an informal institution, found in Somalia and the diaspora, for settling disputes, though what concerned some observers was that the gar apparently claimed the right to adjudicate in criminal matters.

Law in Action