My Lords, I thank the noble Baroness, Lady Cox, for bringing this matter for debate in the House today and explaining why she wants to see the measures in her Bill come into force. Her support of women’s rights across the world is well recognised and I admire her courage and determination in seeking decency and justice.
I have listened carefully to all the points that noble Lords have made, yet the Government have reservations as to whether the measures in the Bill are the best way forward, some of which have already been articulated sensitively by the right reverend Prelate the Bishop of Manchester.
The noble Baroness’s Bill is driven by the concern that all citizens should have the same rights. It has been suggested that religious law principles applied by arbitral tribunals and religious councils in this country may undermine the principle of equal rights under the law. Let me make it quite clear that religious principles can be applied legally in the national courts context only if both sides have freely agreed to be bound by them. Regardless of religious belief, every citizen is equal before the law.
The Bill prohibits the use of arbitration in family disputes. The Government, like their predecessors, are keen to promote the use of non-court dispute resolution services for family and other disputes. Typically this is through mediation. However, couples, communities and other groups have the option to use arbitration and to apply religious considerations. For example, the Jewish Beth Din has long been recognised as able to conduct arbitrations applying Jewish law considerations. The Muslim Arbitration Tribunal, established in 2007, provides an alternative route to resolve civil law disputes in accordance with Sharia principles. In both cases this is because the Arbitration Act 1996 allows parties to an arbitration to agree any system of law or rules, other than national laws, to be applied by the arbitral tribunal. Crucially, both parties must freely have agreed to arbitration and to the use of religious principles. Even where religious law considerations have been applied to an arbitration, the resulting decisions are subject to review by the national courts on a number of grounds, including whether the agreement was freely concluded.
Religious councils that are not governed by the provisions of the Arbitration Act are different. The recommendations of religious councils such as Sharia councils and the marriage tribunal in the Catholic Church are not binding in law because of this. Such recommendations are subject to the law of the land.
The noble Baroness raised concerns over coercion. No one should feel pressurised or coerced into a using a Sharia or other religious council to resolve their dispute. Any member of any community has the right to refer to a civil court at any point, particularly if they feel pressured or coerced to resolve an issue in a particular way. If there has been coercion, the outcome of any mediation or arbitration cannot be enforced.
The noble Baroness, Lady Cox, has raised concerns about religious councils adjudicating on matters of domestic violence and violence against women. Quite clearly domestic violence is a dreadful form of abuse and is unacceptable in our society. We are determined to do all we can to tackle it and the Government’s approach is set out in the action plan Call to End Violence Against Women and Girls. It is essential that victims and potential victims are aware of the support and advice available. Indeed, the Government have been working with many groups on this. The Government are working with statutory, faith and other organisations to ensure that messages reach across all communities.
Many of the issues that the noble Baroness, Lady Cox, raises are already addressed in existing legislation. For example, the Equality Act prohibits discrimination on the grounds of sex. The Criminal Justice and Public Order Act prohibits intimidation of all witnesses.
Common law already restricts what can be arbitrated and the Government have no plans to change this. Several noble Lords raised consent orders being checked by the courts. The court is under a duty to question any order which appears unfair and can refuse to make the order.
Turning to the specific proposals in the Bill—and answering the question of the noble Baroness, Lady Thornton— in Part 1 changing the Equality Act so that it applies to arbitral tribunals is considered unnecessary. Under the Arbitration Act tribunals must act fairly and impartially. Awards can be challenged in court if this duty is breached or there is other irregularity. Section 142(1) of the Equality Act already makes contracts unenforceable if they treat someone in a discriminatory way. This would apply to the results of mediations facilitated by a religious council if they were discriminatory. A consultation under Section 149 of the Equality Act is under way to establish whether the public sector equality duty that it creates is operating as intended. It would be wrong to amend Section 149 while the Government are carrying out such a review.
Turning to Part 2 of this Bill, arbitral tribunals must act fairly and impartially and can apply religious considerations only if all parties agree. It is already the common law that criminal acts and some family matters, such as child residence and contact, cannot be arbitrated. As I said, it is government policy to encourage alternative dispute resolution, including arbitration in limited circumstances to resolve family matters. However, it is important for people to be aware of their rights under our country’s legal system. In Part 3, the proposed changes to the Family Law Act 1996 are deemed unnecessary, as contracts are unenforceable if made under duress. The judge will not make an order unless he or she is satisfied that there was consent and equal bargaining power between the parties.
In Part 4, Section 51 of the Criminal Justice and Public Order Act already makes it an offence to intimidate those assisting an investigation, witnesses and potential witnesses. This includes victims of domestic violence.
In Part 5, I finally turn to the proposed new crime of falsely claiming legal jurisdiction. The Government believe that introducing the proposed offences is unnecessary. This is because Sharia councils and other religious councils have no jurisdiction in this country, therefore any decision they make can never be legally binding. If any decisions or recommendations made by any religious councils or arbitration tribunals were illegal or contrary to public policy or national law, then national law would always prevail.