By LSS member Daniel Anderson *
“We realised that under the Arbitration Act we can make rulings which can be enforced by county and high courts. The Act allows disputes to be resolved using alternatives like tribunals. This method is called alternative dispute resolution, which for Muslims is what the sharia courts are.”
— Sheikh Faiz-ul-Aqtab Siddiqi, founder of the Muslim Arbitration Tribunal Panels
It certainly has been widely believed that the Arbitration Act 1996 allows for rulings made by religious tribunals to be enforced in the civil courts (for example, see this). And, in fact, even opponents of parallel legal systems seem to reluctantly accept that this is the case. But does the Arbitration Act 1996 actually allow for rulings made by religious tribunals to be enforced in the civil courts?
In this article I wish to guide you through the relevant parts of the Arbitration Act 1996 because, with respect to all the people who agree with the above quote from Mr. Siddiqi, I either think they have not actually read the Act or that they have simply misunderstood it. And it is hoped that by the end we will all come to the conclusion that, in fact, the Arbitration Act 1996 does not allow religious tribunals to make rulings which can be enforced by the civil courts.
But before doing so, very quickly, a definition for all those non-lawyers who are unclear what arbitration actually means.
Arbitration is simply: a process by which parties to a dispute agree to submit their differences to the judgment of an independent person or body.
Let’s now turn to the Arbitration Act 1996 and examine the relevant sections. (You can, of course, read the Act in full for yourself here.)
Enforcement of tribunal rulings in the civil courts
s66 Enforcement of the award.
(1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.
(2) Where leave is so given, judgment may be entered in terms of the award.
Therefore, section 66 of the Arbitration Act 1996 does allow tribunal rulings to be enforced in the civil courts by way of application to the court. But this is subject to the arbitration agreement being in writing, under section 5.
The agreement to participate in arbitration must be in writing
s5 Agreements to be in writing.
(1) The provisions of this Part apply only where the arbitration agreement is in writing, and any other agreement between the parties as to any matter is effective for the purposes of this Part only if in writing.
The effect of section 5 of the Arbitration Act 1996 is to require that all parties must agree to arbitration in the form of a written contract.
It might therefore be reasonable to presume that from sections 66 and 5, provided that written agreement from all parties consenting to the arbitration is obtained, religious tribunal rulings are therefore able to be subsequently enforced in the civil courts. On initial observation of the Arbitration Act 1996 Mr. Siddiqi seems to be correct in what he is stating.
But we must look further. And when we do, we will discover that there are three major limitations in the Arbitration Act 1996 which will prevent religious tribunals’ rulings from being enforced in the civil courts. These are set out below.
Limitation 1: The ‘public interest’ test
Any law undergraduate currently studying the contract law module at university will know that the civil courts ‘police’ agreements made in a number of ways and can hold them to be invalid if it is in the ‘public interest’ to do so.
Such scenarios of where the civil courts have held agreements to be invalid include:
- Agreements made which have an illegal purpose contrary to other statutes made by Parliament
- Agreements made with a minor (i.e. a child)
- Agreements made with someone lacking mental capacity
- Agreements made which are obtained under duress
- Agreements made which are obtained under undue influence (i.e. where someone abuses their position of trust with someone else)
And this ‘public interest’ test in respect of arbitration is expressly referred to in the Arbitration Act 1996, at section 1:
s1 General principles.
The provisions of this Part are founded on the following principles, and shall be construed accordingly—
(a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;
(b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;
So the first limitation under section 1(b) is that any tribunal ruling made which is not in the public interest cannot be enforced in the civil courts.
There are plenty of examples of the civil courts ruling that religious agreements are not valid in the public interest. Examples include:
In Jivraji v Hashwani  EWCA Civ 712 the Court of Appeal concluded that an arbitration agreement which stipulated that all arbitrators must come from the Ismali community was rendered invalid because it fell foul of laws prohibiting discrimination on the grounds of religion or belief in relation to employment.
In Soleimany v Soleimany  QB 784 the Court of Appeal refused to enforce an arbitral ruling made by the Beth Din under Jewish law which ruled that a contract to smuggle carpets out of Iran could be implemented. Smuggling carpets out of Iran was illegal.
In SB v Secretary of State for Work and Pensions (BB) (Bereavement and death benefits: bereavement payments)  UKUT 495 ACC the Upper Tribunal ruled that a telephone marriage was not a valid marriage when one party to it is in the UK. This enabled the recently bereaved spouse who did have a later valid marriage in the UK to claim bereavement benefits.
And finally, my LSS colleague Sadikur Rahman has already referred to a case where the wishes of a Muslim individual were to look after his wife and have sexual relations with her despite her having the mental age of a 4-7 year old. The Court of Protection gave short shrift to the individual’s religious claims and wishes.
So any religious tribunal ruling which is contrary to the ‘public interest’ will not be enforced by the civil courts.
Limitation 2: serious irregularity
The Arbitration Act 1996 also states what duties it expects of tribunals in how arbitration is to be conducted:
s33 General duty of the tribunal.
(1) The tribunal shall—
(a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and
(b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.
Notice that the word ‘fair’ is used both in sub-sections (1)(a) and (1)(b) above. Tribunals therefore must act fairly between the parties to ensure that a fair ruling is made.
And what happens if a tribunal does not comply with its duties of fairness under section 33? Well, here we turn to section 68:
s68 Challenging the award: serious irregularity.
(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award.
(2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant—
(a) failure by the tribunal to comply with section 33 (general duty of tribunal);
So under section 68 of the Arbitration Act 1996 any tribunal ruling made where there has been serious irregularity in proceedings can simply be set aside by a civil court. In other words, the civil court will set aside the tribunal ruling on the basis that the inherent unfairness of proceedings casts doubt on whether any genuine agreement to arbitrate was in fact made in the first place.
And thinking about this for a minute, it makes perfect sense. A party is very unlikely to agree to arbitrate if the manner of how it is to be conducted is so unfair to them. Why would they?
Are religious tribunals capable of conducting arbitration proceedings which are fair and that do not fall foul of sections 33 and 68 of the Arbitration Act 1996? Looking at the two most common religious tribunals, the Beth Din and the Sharia Tribunals, I would submit that they are not capable of conducting proceedings which are fair.
For example, under Jewish ‘law’ women have no rights to initiate a divorce without the agreement of the husband (such women are known as ‘agunot’ or ‘chained wives’). And, traditionally, women are not even permitted to serve as witnesses in the Beth Din.
And likewise, under Sharia ‘law’ women have no rights to initiate a divorce without the agreement of the husband. And whilst women are permitted to attend Sharia tribunals, their testimonies are worth half that of a man.
Any ruling made by either the Beth Din or Sharia Tribunal under such circumstances would be deemed to be unfair to a civil court because an irrelevant factor, in this case someone’s sex, is being taken into account for no logical reason.
But the same conclusions would apply for any other religious tribunal, such as a Hindu tribunal taking into account factors such as caste. All religious tribunals would, by their very definition, take into account irrelevant factors in reaching their rulings. And so, all religious tribunal rulings face being set aside by a civil court on the basis they were made unfairly under section 33 and 68.
Limitation 3: no jurisdiction over certain matters
Finally, there is also the issue of the jurisdiction of tribunals over certain matters. Jurisdiction, for non-lawyers, simply means the official power to make rulings.
s67 Challenging the award: substantive jurisdiction.
(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court—
(a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or
(b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction.
So under section 67 no tribunal is able to make rulings where they do not have the power to do so. And this is of particular importance to many, if not the vast majority of, religious tribunals as they primarily make rulings on family matters.
Perhaps the two most significant examples of where religious tribunals do not have jurisdiction over family matters are:
- Issues concerning contact with children
- Financial settlements upon divorce for marriages registered under UK Law
In both instances religious tribunals cannot make any rulings on the above matters because Parliament has held that the civil courts must have exclusive jurisdiction. Under section 10 of the Children Act 1989 only certain individuals can apply for contact with children and this can only be done with the permission of the civil court or on the civil court’s own initiative. And under section 34 of the Matrimonial Causes Act 1973 any financial matter concluded upon divorce which restricts the right to apply to a civil court for a remedy is automatically deemed to be invalid.
Therefore any religious tribunal making rulings in respect of contact with children is acting outside its jurisdiction. And any religious tribunal making rulings in respect of financial settlements upon divorce of a marriage registered under UK Law that prevents a party from going to a civil court is also acting outside its jurisdiction.
And so, again, any tribunal rulings on such matters will simply be set aside by the civil courts.
As we have now hopefully seen, the Arbitration Act 1996 does allow for tribunal decisions to be enforced by the civil courts as a general principle. However the Arbitration Act 1996 imposes major limitations to this general principle. And the limitations of public interest, serious irregularity/unfairness, and lack of jurisdiction in reality prevent religious tribunal rulings from being enforced in the civil courts.
As a lawyer I have not actually come across any examples of religious tribunal rulings being enforced by the civil courts. And this should come as no surprise. The Arbitration Act 1996 was never designed to recognise, let alone encourage, the proliferation of religious tribunals. The actual purpose of the Arbitration Act 1996 was to encourage commercial disputes to be settled quickly without time having to be spent by the parties pursuing expensive and wasteful litigation (no-one benefits from expensive and wasteful litigation except lawyers!). Commercial parties are, generally speaking, likely to be of more equal bargaining positions and so are far more likely to able to arbitrate properly.
So why do advocates of parallel legal systems continue to cite the Arbitration Act 1996 as support for their particular system? The answer is that by continually citing the Arbitration Act 1996 the religious tribunals are being seen to be legitimised legally. And the apparent threat of rulings being enforced in the civil courts can be used to put pressure on those most disadvantaged in communities to use their particular parallel legal system in question.
The growth of religious tribunals as part of parallel legal systems is not the result of the Arbitration Act 1996. Their growth is a failure of us all to continually defend and uphold the secular legal system for everyone. We must all accept responsibility – and we must all challenge parallel legal systems.
* Daniel Anderson was an LSS member from Oct 2014 to Jul 2015
Views expressed are not necessarily those of the LSS
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