Last update: 2019-07-09 13:55:17
Since 2001 the governance of the UK as a multi-ethnic, multi-cultural society has seemed increasingly problematic, with principles which underpinned that governance from the 1960s widely questioned. This was partly the outcome of changes in the populations with which governments, national and local, had to deal; in the 1950s immigrants from the Caribbean; in the 1960s and 1970s, from South Asia, with distinctive cultures and languages; in the 1990s and 2000s economic migrants from Eastern Europe and Sub-Saharan Africa, and refugees from all over the world. Cities like London became “superdiverse”, creating many problems for governance. At the same time, the lives of the descendants of the earlier waves of immigrants, born and brought up in Britain, underwent profound change.
These developments are reflected in the way diversity in Britain has been conceptualised. If in the 1950s-60s the otherness of minorities of South Asian background was represented through the language of “race” or “colour” (as in “race relations”), and in the 1970s-80s through “ethnicity” and “culture”, in the 1990s and beyond “religion” became increasingly dominant. In a complex dialectical relationship with the reality of everyday lives, government policy emphasised “faith” as a mode of recognising and working with minorities. “Faith”, however, was double-edged, especially when it meant “Islam”, often seen as an aggressive, conservative force, indeed an existential threat, with values at odds with liberal secular democracy. After 2001, it was Islam, and the radicalisation of Muslim youth, that came to preoccupy the governance of others, feeding growing misgivings about the extent and nature of diversity, and often open hostility towards multiculturalism.
Immigrants and minority ethnic groups would be “Here but Different”
Since the 1960s British multiculturalism had followed the so-called “Jenkins Formula”, named after the then Labour Home Secretary, Roy Jenkins, with legislation restricting and controlling immigration and redefining British nationality; regulating “race relations” through laws to combat discrimination; and a move towards “integration”, defined as “equal opportunity, coupled with cultural diversity, in an atmosphere of mutual tolerance”. The future for immigrants and their descendants was within a common public sphere of shared norms and values, with equal opportunity in employment, housing, education, health and welfare, equality before the law, and protection from racism. Distinctive beliefs, values, practices, religion, language were for the private sphere. Immigrants and minority ethnic groups would be “Here but Different”. Certainly progress was neither uniform nor uncontested, and reports continued to document the many problems minorities faced, yet there was a gradual move towards a more plural and equitable Britain.
By the turn of the millennium, however, and increasingly thereafter, there was a turn against multiculturalism, which it was believed had become too “strong”, with fears that it was leading to social, economic, cultural, religious, and educational separatism. 2001 was critical in mobilising opinion, first as a result of disturbances in the ethnically-mixed northern cities of Britain which occasioned heart-searching about the alienation of minorities, especially young Muslims, then because of 9/11. A report into the 2001 disturbances, for example, recorded concerns that many communities increasingly led “parallel lives”, a development which the government believed could not be tolerated. Besides alarm about ghettoisation, multiculturalism was criticised for transgressing principles of liberal democracy; for essentialism; for treating cultures as static, finite and bounded ethnolinguistic blocs; for privileging patriarchy and religious authority and disempowering women; for allowing concerns with “culture” to override traditional social issues and sideline racism. Core “British” values were asserted against those thought at odds with them, amid demands that minorities declare their loyalty to the nation-state in which they reside, rather than the one whence they came, where many retained significant transnational ties.
The “Case of Islam”
The case of Islam illustrates this. There is a spectrum of opinion about whether British society should accommodate “Other” beliefs and practices. Concerning Islam, for instance, some would deny any public place for the legal and ethical norms entailed in Islamic law and practice, that is Sharia. Against that are Muslims who insist on nothing but Sharia in pristine form (according to their interpretation). There are, however, many others, Muslim and non-Muslim, distancing themselves from the interpretation of Sharia followed by some Muslim majority countries (hudūd punishments, recognition of the talāq mode of divorce etc), while allowing some space for Islamic principles.
This happened when internationally many people were turning to religion to guide their conduct
During the 1990s and into the 2000s calls for the recognition of those principles became clamorous, reflecting how, since the 1970s, the settlement of migrants who are adherents of Islam increasingly involved families. Matters affecting family life and relations of gender and generation grew in importance: birth, marriage, divorce, death, inheritance, bringing up children, and interacting with schools, welfare and social services, housing authorities, local councils and so on. This happened when internationally many people (and not just Muslims) were turning to religion to guide their conduct and seek advice on how to comport themselves in societies many see as secular, individualistic and immoral.
Such claims, on the part of Muslims in the UK and elsewhere in Europe and in North America, for the recognition of Muslim family law are highly controversial, as was illustrated by the response to a suggestion in 2008 by the then Archbishop of Canterbury, Rowan Williams, that the UK should allow room for “supplementary jurisdictions”, such as Sharia councils, quasi-legal bodies working alongside the British judicial system, where Muslims might seek rulings on family matters; they have been compared, not always accurately, to the Jewish Beth Din. The reaction to what he said led to widespread calls for his resignation if not impeachment for treason.
Although Sharia became a major site of contestation in Britain in the late 2000s, such councils had in fact existed since the early 1980s, offering UK Muslims advice on the application of Islamic principles concerning halal products, religiously appropriate burial practices, or financial transactions. Indeed, British legislation has often made room for such practices, for example, authorising Sharia compliant financial instruments. Closely tied to mosques, the councils had attracted little attention, but in response to the Archbishop’s intervention, a number of groups emerged opposing recognition of Sharia in any shape or form. These included street movements of the extreme right, neo-liberal or neo-conservative think tanks, feminist and human rights activists (Muslim and non-Muslim), opposed to Islam’s treatment of women, and humanists and secularists arguing that religion has no place in the public sphere. Recognition of Sharia, some contended, would be the thin end of the wedge of Islamism threatening British values; in a secular society there should be only “One Law for All”, and Muslims should abide by the rules of their country of residence.
Prior to the controversy about Sharia, minority families, especially families of South Asian background, had come under increasing scrutiny for their marriage and divorce practices. The normative assumption in the UK, as in Europe, is that marriage is a publicly recognised relationship, historically between a man and a woman, though that has changed, freely entered into by prospective partners. Consequently, much attention focused on arranged and what are seen as forced marriages, and the gender relations these imply. (It is sometimes wrongly believed these are justified by Islam in a cultural complex encompassing domestic violence and so-called “honour killings”).
Public concern came to the fore in the late 1990s when the then Labour government established a working group whose report, A Choice by Right, argued that while there was a difference between “arranged” and “forced” marriages, and a multicultural society “must value and celebrate our diversity”, practices that “compromise or undermine the basic rights accorded to all people” could not be tolerated. Subsequent measures included a Forced Marriage Protection Unit in the Home Office, and in 2006 legislation that made forced marriage an offence for which the victim could seek redress through the civil courts. Later, in 2014, forcing someone to marry became a criminal offence.
Another controversy has concerned whether Muslim couples should formally register their marriages with the civil authorities as well as undergoing a religious (Islamic) ceremony, a nikāh. The nikāh, which may take place in a mosque or private home, does not create a legally valid marriage in the UK. This requires another, civil, ceremony, in a registered building, conducted by an authorised person. This is different from Christian and Jewish marriages but similar to those of Sikhs or Hindus. Those who have not gone through a civil or recognised religious ceremony are simply “cohabiting”. This gives partners little legal protection, with consequences for maintenance and pension rights, and rights to inheritance. Women in particular, Muslim or other, may thus suffer on the break-up of a relationship, especially if confronted by a recalcitrant spouse. This matter was addressed in the report of the Siddiqui Panel, discussed below, as was the issue of Islamic divorce.
A major task of the Sharia councils is to rule on applications for a religious divorce, principally on the part of women
A major task of the Sharia councils, indeed their raison d’être, is to rule on applications for a religious (not civil) divorce, principally on the part of women, to confirm their status as devout Muslims and enable them to remarry. By contrast with the adversarial tradition of English courts, Sharia councils seek to uncover the circumstances surrounding a marital dispute, and where possible foster reconciliation. Indeed, reconciliation 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 wants.
The “Siddiqui Panel” and Compatibility with UK Laws
While councils avoid recommendations which might bring them into conflict with civil courts, e.g. regarding the custody of children, their role in religious divorce and family law matters is highly controversial, and a prominent member of the House of Lords, has sought to introduce legislation which would restrict, indeed criminalise, their activities. She was supported by a consortium which brought together organisations and opinions from across the political spectrum: Christians, the National Secular Society, the Southall Black Sisters (a radical feminist group), the United Kingdom Independence Party, the English Defence League, and centre-right think tanks, who otherwise might not talk to each other. She failed, but against that background in 2016 the then Home Secretary (Theresa May), appointed a working party, chaired by Mona Siddiqui, Professor of Islamic and Interreligious Studies, Edinburgh University, “to explore whether, and to what extent, the application of Sharia law may be incompatible with the law in England and Wales, such as legislation around equality”. Shortly afterwards, another inquiry was instituted by the House of Commons Home Affairs Committee, to “examine how Sharia councils operate in practice, their work resolving family and divorce disputes and their relationship with the British legal system”.
Both reviews consulted widely, interviewing experts and activists. The Home Affairs Committee, ten MPs from the major political parties, received over forty submissions, and in November 2016 held a day of interviews: the submissions and transcript are online. To date, the Committee has not produced a report, and is unlikely to do so; the Siddiqui Panel reported in February 2018.
Besides Prof. Siddiqui, the Panel included two family law barristers, a retired High Court judge, and two Imams as religious advisers. It focused on “the ways that Sharia may be being used which may cause harm in communities”; the treatment of women “particularly in divorce, domestic violence and custody cases”; and examples of best practice regarding governance and compatibility with UK law. It began by issuing a call for evidence which was, however, rejected by some opponents of Sharia who decided on a boycott. An Open Letter to the Home Secretary, signed by 200 “women’s human rights organisations and campaigners”, said that while they welcomed such an inquiry, its terms of reference and membership meant that the review was likely to be “seriously compromised”. The government, they contended, had “constituted a panel more suited to a discussion of theology than one which serves the needs of victims and is capable of investigating the full range of harms caused by Sharia councils and tribunals, particularly for women”. There were particular objections to the two Muslim experts on the grounds of their participation in a web-based forum, Imams Online, which it was claimed took “extremely problematic positions … on a range of issues that should certainly concern the inquiry”. Another letter, organised by the Muslim Women’s Network UK, with over 100 signatures, took issue with their contentions, arguing:
When it comes to matters of faith, Muslim women should be speaking for themselves. However, it appears that the voices of these very women that the investigators should listen to are being marginalised. On one hand, religious conservatives who claim that discrimination does not take place ... On the other, some activists regard all faith practices as discriminatory and also conflate misogyny and patriarchy.
In fact, the Panel received a wide range of submissions from Sharia councils and their users, academics, women’s groups, and representatives of other religious bodies including the Jewish Beth Din. It also organised interviews and site visits. Although there has long been controversy over the number of councils (between 30 to 85 are typical figures), the Panel identified ten with an online presence from whom it took oral and written evidence.
A State Body to Regulate Councils
Briefly, the Review made three principal recommendations: changing the law to ensure that civil marriages are conducted before or at the same time as an Islamic marriage; developing programmes to encourage civil registration; regulating Sharia councils via a state body which would create a code of practice. The first two recommendations closely follow the approach advocated by a campaign group Register Our Marriage. In due course the Government announced that it would examine the legal implications of reforming the law on marriage and religious ceremonies, and support campaigns by groups such as Register Our Marriage highlighting the benefits of civil registration. The third requires additional comment.
The Report acknowledged that councils are voluntary organisations with “no legal status and no legal binding authority under civil law”
The Report acknowledged that councils are voluntary organisations with “no legal status and no legal binding authority under civil law”, which fulfil an important role for Muslims. Nonetheless, while the practices of some councils are commended (e.g. leaving the custody of children or maintenance issues to the civil courts), others are identified as “bad” (e.g. persuading women to make concessions to their husbands to obtain a divorce, failing to include women on their boards, and holding “varying and conflicting interpretations of Islamic law”. Consequently, the Panel concluded that there was “evidence that the rights and freedoms of some women are indeed infringed in some proceedings by some councils”. While rejecting closing the councils, as some anti-Sharia activists advocated (it could drive them underground), the Panel proposed that the government should establish a body to identify and subsequently “monitor and audit” a code of practice to regulate their activities. A previous attempt at self-regulation, via a “UK Board of Sharia Councils”, had come to nothing. The government, however, argued that a “state-facilitated” scheme (an issue on which the Panel was in fact divided) would give the councils “legitimacy as alternative forms of dispute resolution”, and “add legitimacy to the perception of the existence of a parallel legal system”. Further:
The Government do not consider there to be a role for the state to act in this way. Britain has a long tradition of freedom of worship and religious tolerance … Many people of different faiths follow religious codes and practices and benefit from their guidance. The Government have no intention of changing this position.
This hands-off approach reflected the position previously taken on proposals to legislate against the councils. Concerning discrimination against women, however, where this was found to occur, the government would “work with the appropriate regulatory authorities to ensure that [anti-discrimination] legislation and the protections it establishes are being enforced fully and effectively”.
Sharia in the UK would appear to be a major site of contestation between very different beliefs, values and practices, a “Clash of Civilizations”
On the face of it, Sharia in the UK would appear to be a major site of contestation between very different beliefs, values and practices, a “Clash of Civilizations”, as Huntington put it. Though undoubtedly there are Muslims and non-Muslims who see things this way, it is misleading to represent the contemporary situation solely as a confrontation between two sides, seeing the worst in each other. Against this are many Muslims and non-Muslims who find themselves somewhere in the middle, dedicated to bringing different faiths together, and “Building Bridges”, the title of an annual award by the Association of Muslim Social Scientists.
As studies of interfaith groups and networks show, while differences appear to be substantial, there are many followers of Islam on the one hand, and Christianity or Judaism on the other, prepared to enter into dialogue, sometimes theological, sometimes academic, sometimes practical. This is central to the thinking of those who may be described as “critical friends” of institutions such as the Sharia councils. Many lawyers are sensitive to this: the need for dialogue was the rationale behind the 2008 Temple lecture series on Islam in English Law, which included the Archbishop’s controversial intervention. In fact, in the late 2000s many meetings and roundtable discussions brought together Muslim and other religious and civil society associations, members of the legal profession, and academic lawyers to discuss differences between Muslim and English law and the possibilities for reconciling legal approaches to family matters, notably around marriage and divorce.
Religious and political leaders (such as the Archbishop of Canterbury and successive Home Secretaries) play a prominent part in the debates about Islam (for and against), as do lawyers, academic and practicing, and social scientists with their studies of Muslims in Britain. Alongside these are many civil society advocacy groups, especially those concerned with gender issues and human rights from a secular or religious perspective (Muslim and non-Muslim), to whose campaigns political and religious leaders are often responding. Examples include the signatories of the open letters for and against the Siddiqui Review, and other groups whose intervention has been important in campaigns over forced marriage and domestic violence. Such associations and their leadership are also indicative of the increasing participation in British public life of young, highly educated professional women of minority background.
Besides these are representative Muslim associations, such as the Muslim Council of Britain, and not least the media. All are engaged in a complex, multi-sided, multi-faceted intercultural encounter, in the midst of which are the Muslim families who have become a site of dialogue around intercultural understanding and knowledge. What actually happens in Muslim marriages, or in the proceedings of the Sharia councils, and how it should be interpreted, are widely contested, as are the theological-cum-philosophical justifications that underpin beliefs and practices. The intricacies of the Islamic theory and practice of divorce (talāq, khul and other variants), or the emphasis on reconciliation as a fundamental objective wherever possible, are not always well understood while the different schools of law in Islam, and disputes over the ontological status of Sharia, add to the confusion.
In fact, there is a great deal of evidence in academic studies regarding Muslim marriages and the Sharia councils, but whose account carries weight, and what should be concluded from it, is all too often determined by the relative strength of the groups engaged, and the resources they bring to bear. Anti-Sharia campaigners, for example, are articulate, media-savvy lobbyists and networkers, who orchestrate their supporters to influence opinion in the media and in Parliament, promoting their own literature and in-house studies, and their interpretation of what that the evidence says. They are thus able to dominate the public square, with the space for counter-narratives extremely limited.
Nonetheless, while mindsets on both sides are becoming increasingly unyielding, with dire implications for Britain as a multi-faith, multicultural society, there are still Muslims and non-Muslims who are willing to address difficult issues and engage in in meaningful dialogue involving negotiation and compromise.
 Roy Jenkins, Essays and Speeches (Collins, London, 1967), p. 267.
 Cantle Report, Community Cohesion, Home Office, London, 2001.
 Home Office, A Choice by Right: The Report of the Working Party on Forced Marriages, Home Office, London, 2000, p. 10.
 Siddiqui Report, The independent review into the application of sharia law in England and Wales, Cm 9560, Home Office, London, 2018
 Siddiqui Report, pp. 35-38.
 HM Government, Integrated Communities Action Plan, Ministry of Housing, Communities & Local Government, London, 2019, pp. 18-19.
 Robert Griffith-Jones (Ed.), Islam and English Law: Rights, Responsibilities and the Place of Shari'a (Cambridge University Press, Cambridge, 2013).