Straw: no place in the british legal system for Shari’ah law

By Hajira Talbot

Published in the Muslim News, 28th November 2008

The laws of England and Wales cannot accommodate an alternate legal system based on Sharia principles, according to the Rt. Hon. Jack Straw, MP, the Lord High Chancellor and Secretary for Justice, at the October 28 public dialogue held at the House of Commons.

Straw, appearing as a panelist on behalf of the Labour government, seemed to be in firm agreement on the point along with his Conservative counterpart, Edward Garnier, the Shadow Minister for Justice.  The dialogue, a regular event organised jointly by Editor and Publisher of the Muslim News, Ahmed J Versi and Parliamentary Under-Secretary of State in the Department for Communities and Local Government, Sadiq Khan, MP, attracted around 120 young Muslims from diverse backgrounds keen to question the government on the policies which are close to their hearts.

“On this specific issue… it is the case in Egypt, it is also the case in India as in quite a number of multi-religious countries… that laid down in their secular law is provision for religious courts to deal with matters of personal law, usually inheritance and marriage. That is one way of resolving these matters, but I don’t have to agree with that way for this country and I share Edward [Garnier]’s clear view about that,” said Straw.

“Under the Arbitration Act of 1996… there is a perfectly sound statutory base for arbitration including on personal matters, which is what the Sharia courts would do, to be enforced by the English courts if they are consistent with English law, and that’s fine. But I agree with Edward, on matters of children or women’s equality, I’m sorry, I’m adamant about this, our national law must apply.”

The Rt. Hon. Simon Hughes, MP, Shadow Leader of the House of Commons and Liberal Democrat party President, said he shared the views of the Archbishop of Canterbury, who sparked a media frenzy in February by stating he felt adopting certain aspects of Sharia law into the English legal system was “unavoidable”.

“I shared the view that somebody should have given him slightly better PR advice – I felt very sorry for the guy,” joked Hughes. “It has always been the case that there are case resolution mechanisms in faith groups and faith communities – the Jewish community has had them for a long time.”

“I’ve always said there is a place for Jewish and Sharia and other laws but for example you could not have a process recognised by the authorities that was discriminatory against women because it would be against public policy for that to happen.”

The Rt. Hon Edward Garnier, Shadow Minister for Justice, refuted a statement from a participant in the dialogue that the British government displayed resentment against the idea of incorporating aspects of Sharia law into the present legal system, saying “the State, represented by this Parliament, cannot have informal systems of law when social policy and public well-being is affected by it.”

“The State is concerned that the collateral damage of a family breakdown is catered for in a way which is humane, which is civilised, which is uniform and which does not permit abuse of disproportionate consequence.”

“We have one system of law in this country and if those of you who want to insist that Sharia law should become an equal system of law recognised by the courts, well, subject to greater clarification of what you mean, I’m afraid I disagree,” insisted Garnier.

This seemingly unequivocal show of solidarity in rejecting Sharia principles as a humane, civilised or equitable means of dispute resolution may be a bitter pill for many British Muslims to swallow.

Justice Minister Bridget Prentice recently stated that rulings passed by Sharia arbitrators could be “rubber stamped” by the courts, a move which some Muslim arbitrators have argued will hamper speedy dispute resolutions for parties seeking urgent relief.

Abuse of terrorism laws

Among other justice-related topics covered at the dialogue, which was notable for its lack of differences of opinion between the three political party representatives, Liberal Democrat leader Simon Hughes took a hard line against the government’s anti-terror legislation, accusing the Labour government of eroding Britain’s civil liberties on a continuous basis.

Chairperson Fatim Kurji also shone the spotlight on instances where Muslims in Britain have been held under the terrorism detention laws but charged with other offences. She asked the panelists if the detention legislation was being abused by police as a mechanism to buy them more time before charging suspects, mentioning the most recent example of 3October with the firebombing at the residence of the publisher of a controversial new book on Ayesha, the wife of the Prophet Muhammad.

“The individuals were arrested under the terrorism act, but later charged with normal criminal offences. Do you accept that the terrorism legislation is being misused by the police?” asked Kurji.

Jack Straw responded by explaining that under the legislation the police could detain terrorism suspects for up to 28 days, but that a senior judge had to agree to the detention first. Straw also pointed out that recent amendments to the Act included post-charge questioning, which he said he was hopeful would “make things easier”.

Edward Garnier supplied the audience with another example of misuse of terror legislation: “Do you remember Abu Hamza, who was tried at the Central Criminal Court about two years ago? I think he was charged under 12 or 11 counts and they were all under the 1861 Offences Against the Person Act, despite the fact that the government was telling us that they needed lots of new terrorist laws.”

He went on to say that although Jack Straw was correct in saying that terrorism was the biggest difficulty faced within the justice system at present, “it doesn’t mean to say that we have to do everything or anything simply because the word terrorism appears from time to time.”

Hughes stated that the 28-day detention anti-terror legislation was “regularly abused” and “completely wrong”, saying that arguing over whether to detain terror suspects for 14, 28 or 42 days was completely arbitrary.

“The feeblest argument of all is the Home Secretary coming to the House of Commons… saying ‘the police asked for more time’. I have never known the police to ask for less or fewer powers, ever. Of course they always ask, but it’s not the job of government to do what the police say. It’s the job of Parliament to do what Parliament thinks is right to balance the police view and the view of the citizen and we have failed, sadly, to do that,” Hughes said.

“This is one of the reasons why some of us believe we need a written Constitution as well as the Human Rights Act and a written Bill of Rights, and I hope that will give protection to people of all different faiths than sadly the Labour government has done by getting rid of our liberties on almost a yearly basis.”

Edward Garnier dismissed Hughes’ remarks as “lily-livered”, claiming there were a lot of “unattractive” people who wished to do “disinviting” things to the country.

The Lord High Chancellor also pooh-poohed the Liberal Democrat leader’s strong comments, saying terrorism was in a “different category” from other crimes. Straw explained, “maintaining civil liberties through some of the difficulties we’ve had is very important and I frankly don’t accept what Simon said in his rather extravagant way, we’re not really taking away people’s liberties, what we’ve tried to do is respond to not just the threat but the reality of terrorism, which has taken away the largest number of human lives, including Muslim lives, Hindu lives, Christian lives, people of no faith – it’s indiscriminate.”
Lack of minority judges

The dialogue also touched on the desperate lack of diversity within the legal profession as a whole and more specifically within the judiciary. Straw said the proportion of non-whites in the legal system was “frankly lamentable” and stated that the government was actively investigating the stumbling blocks which prevented ethnic minorities from entering the judiciary. “It is appropriate for us to intervene to provide opportunities for under-represented communities, of which the Muslim community happens to be a part,” said Straw. He however cautioned that the BVC (Bar Vocational Course) was very hard and a lot of people routinely fell by the wayside. Straw also stressed that he did not believe the lack of diversity was caused by institutional racism, but rather because of other barriers which existed within the framework of the system.

In response to a question posed by a member of the public, Straw dismissed loans for students from ethnic minorities as a solution, and noted that the problem was not getting people to the starting point through qualifications. He pointed out that law schools were turning out more legally qualified people than there were places for in the legal profession, but admitted that a system of mentoring was “critical” for newly-qualified barristers.

Simon Hughes raised the point that it was vital for government to tackle the issue of funding the post-graduation stages of pupilage and the BVC. “I  think there is a good public case for getting together the Inns of Court and government, and talking to the Bar authorities and saying at that stage there should be a representative funding, and I would not be against saying 50% should be women… and we will be reflective (of ethnic minorities).”

Legal Aid cutbacks

Turning their attention to the recent sharp cuts in legal aid funding, the panel was reminded by chair, Barrister Fatim Kurji, that a proportionately large number of Muslim lawyers operated legal aid practices and asked Jack Straw to explain the rationale behind the cuts.

“If we look at this matter in context, the increase in publicly funded but privately employed lawyers has gone up threefold in the past 25 years. We have seen faster growth in publicly funded legal services than any other area of public services, faster than healthcare, education or social services, and this is quite extraordinary,” explained Straw.

“Legal aid, both civil and criminal, in England & Wales costs £2 billion, and the growth has been astonishing. The amount we spend on legal aid in England & Wales per head is the highest in the world. The result is, although the amount being spent on legal aid is not being cut, it is also not being increased.”
In the wake of recent complex and high-cost legal cases such as those involving terrorism, Straw insisted the public should be getting better value for money by removing incentives for lawyers to “milk cases” for longer than necessary.

The Shadow Minster of Justice responded by saying that the government had created its own problems by passing a large amount of legislation in the past ten years, thereby increasing the powers of individuals and groups to go to court to litigate their concerns. “At the same time the government has cut the amount of money available to get representation to do that.”

Simon Hughes also weighed in with some critical remarks on the subject, suggesting the government should have piloted the changes and sought consensus from the legal profession before implementing the change.

“There should have been much more awareness on the impact it would have on BME lawyers.”

“There are many more single-handed firms which are ethnic minority firms. They therefore are finding it much more difficult to survive,” said the Liberal Democrat leader. “So the answer is, it has had an adverse impact, that was predictable, and the whole of this some of us saw coming.”

“I have very competent, very good, very well-experienced lawyers from my own constituency in Southwark who were really troubled and remain really troubled, and nothing that’s happened has persuaded me that the government has made the new system a better system.”

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