The Archbishop of Canterbury has sparked a fevered public debate about the relationship between religion and law. Polly Botsford reports

In the week following the Archbishop of Canterbury’s provocative recent speech on sharia law, Mahmud Al-Rashid, spokesman for the Association of Muslim Lawyers (AML), called for the regulation of the growing number of sharia councils, as reported in the Gazette (see Gazette [2008], 14 February, 4). They were both bringing to the fore the interplay between religious freedoms and a secular state.

The issue of religious communities having their own set of rules, even their own courts governing areas such as marriage and divorce within the secular state, is a complex one, not least because each community has many voices and, naturally, they are not all seeking the same thing. But what Dr Williams and others have done is to start a public debate, the conclusion of which may yet be a long way off.

At the moment, the purpose and operation of these separate courts is patchy, due to the piecemeal way they have evolved. The Jewish community has courts known as Beth Din – the London Beth Din is the ‘central court’, the court of the Chief Rabbi. There are also currently about five sharia councils for the Muslim community, though most also have regional branches.

For the Anglican Church the story is slightly different. The ancient ecclesiastical courts, which now mostly only govern the administration of the clergy and Church of England property, were until the late 19th century where issues such as divorce and probate were resolved.

Apart from the ecclesiastical courts, these separate courts are run as an addition to the civil law system. David Frei, the London Beth Din’s registrar, says: ‘The Beth Din deals with a range of specific Jewish issues, such as conversions to Judaism. But we take part in the civil process as well. Our court is independent of the civil system, it is not an alternative.’ The same situation obtains for Muslims – for a Muslim couple to get a divorce they must fulfil the civil legal requirements in a civil court, then have the divorce recognised by sharia law in a separate process.

There is one specific example where English legislation has been adapted to recognise the fact that other systems exist – Jewish divorce, called a ‘Get’. A Jewish couple seeking a divorce must follow the English legal process as well as obtaining a Get. A key aspect of Get is that both parties must consent to its granting, otherwise, though the parties might be divorced in civil law, their children and subsequent generations are labelled ‘mamzer’ and are unable to marry other Jews. Now, under the Divorce (Religious Marriages) Act 2002, if one spouse wants the Get but the other party refuses, that spouse can apply to the judge who is dealing with the civil side of their divorce to suspend the civil process until that other party has agreed to the Get.

Other than in this case, neither the Beth Din nor the sharia councils have any formal recognition (there is a common misconception that the Beth Din has some sort of legal status – it does not).

All religions are also not entirely equal under English law. For example, a Christian can get married in a church and a Jewish couple can get married in a synagogue – the ceremonies fulfil the civil registration obligations, but a Muslim marriage in a mosque does not.

These separate religious courts also operate as courts of arbitration and alternative dispute resolution. Where parties to a contract agree to resolve any dispute by way of arbitration, they can agree that any dispute will be decided on the basis of a chosen system of law. This can be a foreign system, such as Belgian law, or a religious system, such as Jewish or sharia law. The arbitration process is also binding to the extent that an arbitration award is enforceable in the High Court. Many civil disputes between Muslims or Jews are resolved in this way.

The courts can also be used as venues for alternative dispute resolution. Aina Khan, who runs her own legal practice in east London and deals with hundreds of Muslim divorces each year, explains: ‘Family matters can be resolved in accordance with the English legal system, with the assistance of the sharia court. I can get an agreement between husband and wife in the sharia court, agree the consent order and then take the order to the civil court. I have found civil court judges to be very welcoming to have such matters resolved by sharia law. They see it as a benefit to have other systems which a community recognises.’

What is less clear, however, is how much further these religious courts and methods of dispute settlement should be developed. Khalid Sofi, chairman of the Legal Affairs Committee at the Muslim Council of Great Britain, says Muslims should have ‘parity with other faiths’ and supports the regulation of sharia councils, as does the AML. Many organisations and individual Muslim lawyers support this. Hajj Ahmad Thomson, who runs Wynne Chambers, specialising in Islamic law, and who has made submissions to the Law Commission on the interaction between English and sharia law, says: ‘The sharia courts are very young… whereas the Beth Din is well-established and well-regulated.’ He says there is also an issue surrounding the quality of the judges. ‘Only people with real knowledge and understanding get to be a judge [in a Beth Din]. Those running sharia courts [only] need to have certain skills, to be fully conversant with the Koran, probably to be tri-lingual.’ But it is also about ensuring consistency between courts, he adds. ‘Sharia courts often represent different communities,’ he says. ‘They need self-regulation and an umbrella organisation to bring them in line with each other.’

So far, so uncontroversial – but is this as far as the debate goes? The problem with Dr Williams’s speech at the Royal Courts of Justice is that it is unclear exactly what he envisages. A statement from Lambeth Palace afterwards said he was exploring ‘how a unitary [and secular] legal system might be able to accommodate religious claims’. Many have interpreted this to mean that religious groups could opt out of certain areas of English law.

This is not the first time that so-called ‘exceptionalism’ has come up. Last year there was an outcry when Cardinal Cormac Murphy-O’Connor, the leader of the Roman Catholic Church in England and Wales, said that insisting that Catholic-run adoption agencies should place children with homosexuals would be asking them to act against church teaching and their consciences. But as Giles Fraser, Vicar of Putney and a member of the General Synod, explains: ‘Liberals in the church really worry about the church and other religious groups claiming exemption from the law of the land.’ He sees Britain as a state where religious communities have considerable freedoms. ‘Our secularism is pretty open – compare it with Turkey, say, where women aren’t allowed to wear a headscarf.’

But others, such as John Rees, a provincial registrar, partner at specialist law firm Winckworth Sherwood and a legal adviser to the Archbishop of Canterbury, says that Dr Williams ‘was doing no more than advocating a form of alternative dispute resolution, a contract-based approach… where the parties agree to a particular forum, which is ultimately constrained by the law of the land’.

The furore that followed the speech was fuelled by those areas where there is a real contradiction between a religious standpoint and existing English law, for instance on the tabloid pet subjects of polygamy and the infamous ‘haad’ punishments, such as stoning and flogging. But, as Ms Khan says: ‘What the Archbishop is talking about, what we are suggesting, is not about criminal law at all, but about civil law. Nor is it about what goes on in other countries. This is about England.’

Similarly, Mr Frei says: ‘It is always important to obey the law of the land in Jewish communities.’

Most people within the various religious communities are not advocating exemptions from existing English law, it seems, or any changes to it. Mr Thomson says: ‘Muslims are not trying to impose Islam on anyone… we like to have a life based on worship, that is all.’

Given the passionate responses the speech has elicited, this is clearly a debate worth having – calmly. As Mr Thomson says: ‘I can feel Macmillan’s “winds of change”. Let’s make them life-giving breezes, not destructive hurricanes.’

Polly Botsford is a freelance journalist