By keeping its sharia guidance, is the Law Society fit to represent solicitors?

Law Society

By LSS Secretary Charlie Klendjian *

It’s been over four months since the Law Society published its practice note on sharia succession rules. Since then there has been some progress but unfortunately there is a good deal still to be done, as this post will demonstrate.

The Solicitors Regulation Authority (SRA)

The Law Society is the representative body for solicitors in England and Wales, and it is often referred to as a trade union. The SRA is the profession’s regulatory body and unlike the Law Society it is a public authority for the purposes of the Equality Act 2010 and it is fully bound by the public sector equality duty.

In its wisdom the SRA decided to endorse the Law Society’s sharia guidance when it issued its own wills guidance on 6 May 2014. In the very final sentence of its own guidance the SRA said:

“If you are acting for clients for whom sharia succession rules may be relevant you will find the Law Society’s practice note on the subject helpful.”

As those familiar with this campaign will know only too well, the Law Society’s practice note contains guidance which specifically discriminates against women and non-Muslims (at section 3.6):

“The male heirs in most cases receive double the amount inherited by a female heir of the same class”

“Non-Muslims may not inherit at all”

The LSS was the first organisation to call attention to the SRA’s endorsement of the Law Society’s practice note. We wrote an open letter to the SRA on 5 June 2014 asking for an explanation of its decision. On 11 July 2014 the SRA withdrew its endorsement: it updated its wills guidance and deleted the final sentence that referred to sharia.

The LSS pressed the SRA repeatedly for a written response to our letter and we eventually managed to obtain a letter from the SRA’s Chief Executive Paul Philip confirming the SRA withdrew the reference “given the concerns that have been raised”.

And this is the greatest tangible success to date on this campaign: the deletion of one sentence, from one website, and the receipt of one letter confirming it. Yes, this is what secularists classify as a success. Pretty sad, isn’t it?

In many ways it’s embarrassing and depressing to celebrate such small events but make no mistake, the withdrawal of the SRA’s endorsement was highly significant. For a public authority to endorse discrimination, and sharia, was shocking. Withdrawing its endorsement was therefore the only sensible course of action open to the SRA – although the SRA maintains in its letter to the LSS that it wasn’t endorsing the Law Society’s practice note. In my book, though, saying to an entire profession, “you will find this useful” sounds more or less like an endorsement.

Anyway, let’s not get sidetracked by the technicalities of what does and does not constitute endorsement. The important point here is that the SRA dipped its toes into piping hot sharia waters, quickly concluded it had made a huge mistake, and leapt out with something resembling dignity. I give them credit for that. If only the Law Society were as self-aware.

The Law Society

The LSS has challenged the Law Society in two open letters, here and here. Sadly, in both its responses, here and here, the then-President of the Law Society Nicholas Fluck was determined to give the LSS a crash course in the English law principle of testamentary freedom, and he simply ignored virtually all the questions in our second letter.

Throughout this campaign the LSS has never challenged the principle of testamentary freedom and we specifically told the Law Society in our second letter that we were aware of and were not challenging that principle.

The LSS fully accepts that people can be as bigoted and discriminatory as they want in their wills, and that the only legal restriction on testators is that they must provide for their dependants in accordance with the Inheritance (Provision for Family and Dependants) Act 1975.

The LSS’s concerns with the practice note are that the Law Society is giving guidance on an area that is simply outside of its remit (theology); that it is endorsing discrimination; and that it is giving sharia the credibility and respectability of a legal discipline within our jurisdiction, not only in the area of wills and succession but more generally too.

I was so disappointed by the responses of the Law Society President to the LSS’s open letters that I submitted a formal complaint to the Law Society on 18 May 2014. Mr. Fluck responded on 17 June 2014. I am bringing this correspondence into the public domain as there is much to be concerned about in the reply.

Firstly, note the tone of Mr. Fluck’s response to my point on testamentary freedom below. By the time I submitted my formal complaint I had been forced by the Law Society to over-emphasise the issue of testamentary freedom, by saying:

“I made it very clear in my letter of 24 April 2014 (at paragraph 8), that the LSS is aware of and is not challenging the concept of testamentary freedom under English law, and that there is no need to explain that people are free to leave their money as they like, subject of course to the Inheritance (Provision for Family and Dependants) Act 1975. Despite this, you talked once again about testamentary freedom in your letter of 8 May 2014, as indeed you also did in your previous letter of 31 March 2014.

“I say once again: the LSS, and I, are aware of and are not challenging the concept of testamentary freedom under English law, and so there is no need to explain that people are free to leave their money as they like, subject of course to the Inheritance (Provision for Family and Dependants) Act 1975. Please take this on board when responding to this formal complaint.”

Mr. Fluck responded:

“Thank you for also going to such lengths to explain to me your understanding of the concept of testamentary freedom.”

Charming. Perhaps if Mr. Fluck had not constantly diverted the discussion away from the Law Society’s role in promoting sharia towards a general legal discussion of testamentary freedom I would not have had to repeatedly explain that I understood the concept.

Mr. Fluck avoided addressing satisfactorily one of the key concerns that I and many secularists have. Even though testators can lawfully be as religiously bigoted and sexist as they wish, it most certainly doesn’t follow that the Law Society should issue formal guidance on how to achieve that discrimination. At point 5 of my complaint letter I sought to make an analogy by asking:

“Would the Law Society issue similar guidance on how to write wills for people wanting to follow rules which called for the distribution of a testator’s assets on a basis which discriminated on the grounds of race, or on a homophobic basis, or against people with a disability?”

Mr. Fluck responded:

“The Law Society would not issue a practice note to its members dealing with the preparation of wills which amounted to unlawful and/or invalid responses to instructions from a client.”

Confused? I am. Not only does Mr. Fluck not answer this vital question, but if anything he indicates that he doesn’t understand testamentary freedom because there would be nothing “unlawful” or “invalid” in a solicitor drawing up a will that was racist/homophobic/discriminatory towards the disabled if that is in fact what the client instructed the solicitor to do.

But it is the following response which is perhaps the most troubling, because it demonstrates very neatly the scale of the problem that the sharia practice note poses. It also demonstrates the entire struggle of secularism in one nutshell. At point 6 of my complaint I asked:

“And if the Law Society would not provide guidance in those latter cases [racist/homophobic/anti-disabled wills], what was the difference here?”

Mr. Fluck responded:

“The difference is self evident.”

No, actually the difference is not self-evident to me and I imagine it is not self evident to many of my fellow secularists either. Bigotry is bigotry, misogyny is misogyny, sexism is sexism and discrimination is discrimination – whether its driving force is religious or non-religious. As long as the Law Society cannot grasp this, we face an uphill struggle to get this wretched practice note withdrawn.

Witness here the complete breakdown of logic in Mr. Fluck’s responses in points 1 and 10:

[1] “…our practice notes…are issued as guidance to our members.”

[10] “The Law Society has not issued guidance on “Sharia law”.”

And finally, how about this for avoiding the question. At point 12 of my complaint I asked:

“Would the Law Society issue guidance that explicitly discriminated against Muslims on the basis there was “demand” for it and/or pursuant to its policy of equality and diversity?”

This was another key question. If the Law Society can produce formal guidance that explicitly discriminates against non-Muslims then it is surely reasonable to ask if it would produce guidance discriminating against Muslims.

Mr Fluck’s response:

“Not applicable.”

Equality and Diversity

There are two points to make here, both equally depressing.

Firstly, how on earth did the Law Society’s sharia practice note manage to break through its equality and diversity firewall? How did the Law Society, which as it states on its own website is proudly “committed to principles of equality and diversity”, conclude it was a good idea to give guidance on sharia, a religious code under which women, non-Muslims, atheists, ex-Muslims, homosexuals and not to mention Muslims themselves are routinely subjected to the most appalling treatment that humans have managed to think of? Just how can the Law Society conclude that issuing guidance which clearly discriminates against women and non-Muslims is in any way consistent with its supposed commitment to equality and diversity?

And secondly, as anyone who has tried to challenge sharia will tell you, sharia is often specifically justified by its proponents and its apologists (or “useful idiots”, as the latter are often called) by reference to the principle of equality and diversity, or human rights language more generally. At the very beginning of this campaign, for example, the then-President of the Law Society justified the decision to produce the guidance by saying “we live in a diverse multi-faith, multi-cultural society.”

Sharia is not in any way an expression of equality and diversity, and we must resist any attempt to justify it in such scandalous terms.

One has to admire the Law Society’s attempts to keep everyone happy. I’m sure in its own mind it has convinced itself it is doing precisely that. On 15 May 2014 it issued a press release celebrating Lesbian Gay Bisexual and Trans diversity in the legal profession at the Pride in London Parade. Good on the Law Society, I say. The then-President led the Legal Pride Group and said:

“Equality for all under the law is something the legal sector is passionate about and many of our members as part of their normal working day will challenge unjust decisions and defend those who face discrimination.”

Fine words, but I’m not sure how comfortably the Law Society’s honourable stance on LGBT rights sits with its endorsement of sharia.

As I mentioned in this post at the end of March: just 72 hours after another former President of the Law Society and the current chair of its equality and diversity committee, Lucy Scott-Moncrief, had called attention to the “woeful underuse” of women’s talent in the legal profession on the front page of the print version of the Law Society Gazette in a piece called “Brain drain” fear as diversity stagnates, the Law Society produced its sharia succession rules. Barely one issue of the Law Society Gazette rolls off the printing press without an article raising the alarm at how few women have been made £1m-a-year partners at MegaFirm LLP. And yet the Law Society chooses to endorse a mediaeval religious code under which women are often deprived of the very right to be educated at all, and treated as property.

The Law Society’s approach to “equality and diversity” is a shambolic, embarrassing, incoherent mess.

Sharia training courses

Sadly, issuing formal guidance to its members on sharia was not enough for the Law Society to tick its equality and diversity boxes and show the world just how trendy it was.

On 24 June 2014 the Law Society ran a course called “Developing services for Muslim clients – an introduction to Islamic rules for small firms”. My LSS colleague Sadikur Rahman attended and you can read his blog post about it here. It makes for depressing reading.

But it gets even worse. The Law Society has a host of related courses in the pipeline:

What’s next? Well here are my suggestions:

  • Sharia and gay pride: keep it quiet!
  • Sharia and free speech: what not to say (or draw!)

There is reference to the training provider “MBL Seminars” in the first three links above, but in any case those three courses still appear loudly and proudly on the Law Society’s website with a Law Society logo at the top. And on the fourth link the training provider is clearly stated as “The Law Society”.

And there is one thing in particular to be worried about, and which shows just how little understanding the Law Society has of this topic. In the first link above, to the family course, there is reference to Aina Khan, a long-standing advocate of sharia. In her speaker biography on that page of the Law Society website is the following wording (my emphasis added):

“Aina frequently works with courts, Sharia Councils and other official bodies on legal issues affecting Muslim and Asian communities and is frequently invited to appear on TV, Radio and the press in the UK.”

“Other official bodies”? Excuse me? For the Law Society, intentionally or unintentionally, to help disseminate the idea that a sharia council is in any way an “official body” is nothing short of a disgrace. The Law Society would presumably say in response to this that it is not responsible for writing the speaker biography. Well it is responsible for reading it before publishing it on its website. Perhaps in the meantime the Law Society should rename the course tagline to “problems not solutions”.

The international dimension

There is an elephant in the room here, and we do ourselves and future generations immense harm by ignoring it: Islamism is on the march and so, inevitably, is sharia. The Islamist group ISIS, which is merrily decapitating and crucifying its way through the Middle East (yes, people still get crucified today), has warned women to wear the full veil or face punishment. And recently ISIS gave Iraqi Christians in Mosul the following “choice”:

  • convert to Islam
  • pay a protection tax (known as jizya)
  • be killed

Now with that in mind please read, just one more time, the following sections of the Law Society’s practice note:

“The male heirs in most cases receive double the amount inherited by a female heir of the same class”

“Non-Muslims may not inherit at all”

Can you join the dots here? Can you see the bigger picture? The level of harm may be different but it is precisely the same ideology, and the same religion, at work. To not recognise that is to consciously choose to commit intellectual and factual suicide.

I wonder what the Law Society’s opinion on the ISIS ultimatum in Mosul would be. Perhaps the Law Society would see it as an expression of equality and diversity as there was a “choice”? Or perhaps the Law Society would cobble together a course called Sharia tax solutions: everything you need to know about jizya in a hurry.

Isn’t it comforting to know that if ISIS ever get to England, the Law Society has started the process of making our legal system acceptable for them?

I don’t expect the Law Society to cure all the world’s problems but I do expect the Law Society not to give sharia credibility and respectability. I do expect the Law Society not to endorse and encourage discrimination. I do expect the Law Society to do everything in its power to assert the dominance and superiority of English law in our jurisdiction. That would send a loud message to this country and indeed beyond these shores. Ideally I would like to see the Law Society call attention to the harm sharia manages to do in this country even though sharia does not have the status of law. I would like the Law Society to highlight the problem of sharia councils, for example. But if it won’t do that, and it’s probably safe to assume it won’t, is it really too much to ask of the Law Society that it doesn’t actively promote sharia law? As a secularist I have trained myself over a number of years to have the lowest possible expectations, and yet I am constantly disappointed.

Where do we go now?

The Law Society’s behaviour has been raised in Parliament by the Conservative MP Charles Walker (here, here and here).

Private Eye – a publication I often think of as democracy’s last line of defence – has recently run three pieces critical of the Law Society’s practice note (here, here and here). I am particularly pleased at Private Eye’s decision to pick up this campaign because that publication is like a dog with a bone.

As we have seen, the SRA has withdrawn its endorsement (which wasn’t an endorsement, remember, even though it was).

And as LSS Secretary I even have something to thank the Law Society for: its sharia guidance has been excellent for attracting new members to the LSS. More than any other secularist issue, certain parts of the legal profession are incredibly concerned about sharia. If you’re interested in joining the LSS please visit this page, but please be patient while we deal with a backlog, thank you.

The Law Society is increasingly isolated. It is vital that anyone who is concerned about the Law Society’s practice note makes their voice known. You can contact your MP, you can contact the Law Society (here, here or on Twitter @TheLawSociety), and you can sign the LSS petition calling for withdrawal of the practice note.

And rest assured, the LSS will continue to challenge the Law Society.

Is the Law Society fit to represent solicitors?

Over ten years ago, when I was about to start law school in Chester, my fellow students and I had to demonstrate to the Law Society that we were of sufficiently good character to join the profession, by submitting letters from referees.

Well it seems we have come full circle. It is now the Law Society that must demonstrate to me, to my fellow solicitors and to countless others that it is fit to be the representative body for solicitors in England and Wales. It can only do that by withdrawing its sharia practice note, immediately.

Even though the Law Society’s guidance does not change the legal status of sharia, it changes the perception of the legal status of sharia. For that reason, if nothing else, the decision to issue the practice note represents a monumental misjudgement on the part of the Law Society. The Law Society has undermined the rule of law.

It is not acceptable for the Law Society, or politicians, or commentators, to focus merely on whether the Law Society’s guidance is lawful. The guidance is grossly immoral and not in keeping with this country’s proud record on equalities, and that is reason enough for withdrawal. If the Law Society had issued racist guidance no-one would be throwing their arms up in defeat and pronouncing with a pathetic air of resignation, “well, I suppose there’s nothing illegal about it”. This is the analogy we must make with the sharia practice note.

For every day that passes with the Law Society’s practice note in place I feel like resigning in disgrace from the profession I set my sights on joining when I was fifteen years old.

The Law Society’s decision to issue a practice note on a barbaric, inhumane, mediaeval religious code which has been and continues today to be the source of so much human depravity and misery makes me want to scream, to cry, to vomit. I suppose, in the Law Society’s parlance, its practice note evokes diverse feelings within me.

* Charlie Klendjian was LSS Secretary and an LSS member from Oct 2012 to Aug 2015


Views expressed are not necessarily those of the LSS

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  1. Pingback: Official Endorsement of Sharia Inheritance in England and Wales (UPDATED) | Peter's Posts

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