Eyes open to religion

As different faiths become more prominent in the UK, Jeremy Fleming looks at the work of religious courts and the opportunity for lawyers to offer advice to a new type of clientele

The growing influence of the Islamic world globally is starting to have an impact in the legal market, with the need to comply with Shari'ah law increasingly a feature of the deals the top City law firms are doing.

Last month, top ten firm Norton Rose announced that it is involved in an independent working party - headed by former Barclays Bank chairman Andrew Buxton - that is looking to develop an 'Islamic mortgage' compliant with Islam's shari'ah law, which prohibits interest payments (see [2002] Gazette, 5 December, 8).

City firms tend to act for hard-headed reasons, and recent claims by US think tank The Council on Foreign Relations that Saudi-based investors have withdrawn about $200 billion (131 billion) from the US in the wake of 11 September, might have influenced Norton Rose, a firm with a good track record for working in the Middle East.

Middle Eastern investment in UK property rose to 875 million in the first three-quarters of last year, up by 15% from the previous year's total of 750 million.

In 2000, just 210 million was invested in the UK.

But if City firms chasing foreign dollars is an old story, so too is the involvement of solicitors in religious legal processes and courts in the UK.

Indeed, earlier this month, the newspapers were full of slightly salacious reports from an ecclesiastical tribunal chaired by the Archbishop of York, David Hope, of an appeal by Reverend Harry Brown, who was sacked from his post as priest-in-charge of Crosscrake and Preston Patrick, near Kendal in September 2001, after allegations of sexual harassment, intimidating behaviour and financial irregularities.

A decision is still awaited.

The best established religious courts in the country are Anglican.

Paul Morris, a partner with London firm Winckworth Sherwood, is the diocesan registrar for the Church of England's London and Southwark districts.

This means he acts as the bishop's legal adviser, but also as the administrator for the consistory courts within his district.

'The consistory courts are statutory courts which have legislative effect within the UK, and as such are the only religious courts that do - as a result of the church being the established church,' he says.

There are 43 consistory courts in England - one for each diocese - each presided over by a chancellor of the diocese, typically a senior barrister.

These courts are ancient, according to Mr Morris, who says their main role is to grant or refuse 'faculties', these being the church's equivalent of planning permissions or listed building consents.

'If people want to rip out pews, put in a dance-floor and a tearoom, then they need a faculty.

The courts usually convene - with full wigs and rules of evidence - in the actual church that is itself the subject of the dispute, but not always.

I remember once appearing in the Old Bailey for a consistory court, because the chancellor of the diocese happened to sit there.'

The courts can also order injunctions and restoration orders, and contempt of court can be referred to the High Court, where it will, if necessary, be treated as contempt of that court.

'It does have real teeth,' says Mr Morris.

There are two courts of appeal from the consistory courts, and these reflect the ancient north/south structure of the Church of England.

A Canterbury-based court, the Court of Arches, serves the southern district (overseen by the primate of the church, the Archbishop of Canterbury), and the Court of Auditors, presided over by the Auditor, is based in York, the seat of the second most important archbishop of the church.

Solicitors are less involved in the workings of the Catholic ecclesiastical tribunals.

These operate according to canon law and are attached to each of the 22 Catholic dioceses in the UK.

Richard King, head of charities at Devon firm Tozers, says that only Catholic clergymen trained in special legal seminaries in Rome and Canada can appear before the tribunals, which deal chiefly in requests for annulments from marriage.

However, Mr King - who acts for the Catholic diocese of Plymouth and for Buckfast Abbey, a community of Benedictine monks - explains that his job frequently involves interpreting canon law alongside the civil law.

'If a religious institution is closing, for example, we need to consider how canon law will provide for the dispersal of assets at the same time as considering the civil law's provisions for taxation and so on.'

An example can be seen in the mid-1990s, when Buckfast Abbey closed a school that was attached to it.

Parents complained that the school's trustees were not acting constitutionally.

Among the issues that the English court had to decide was whether under the 'Rule of St Benedict' - which governs the order - the abbot had been entitled to make a decision unilaterally, or whether his council or the whole monastery should have assented.

The judge held that under the rule, the abbot's decision was valid, because he had acted after consulting his council.

Meanwhile in London, the Orthodox Beth Din - the Jewish court - has been established for more than 200 years.

This court consists of three rabbinical dayanim (judges) and hears cases relating to Gets (Jewish divorces), conversions, determinations of Jewish status - when, for example, someone wants to join a synagogue - and arbitration to resolve commercial and other civil disputes.

David Frei, a solicitor who acts as the court's registrar and legal adviser, says: 'Every sizeable Jewish population needs a Beth Din to deal with Gets and conversions.

The London Beth Din dealt with around 150 Get considerations last year alone.'

A Get is granted by mutual consent of both parties.

The husband - or his legal representative - hands the Get to his wife who then must agree to accept it.

The procedure must be formally effected under the auspices of the Orthodox Beth Din.

Both parties need an Orthodox Get if they wish to remarry in an Orthodox synagogue and the law is on the verge of a major shake-up this year when the Lord Chancellor implements a new law designed to prevent one spouse - almost always the husband - from unduly delaying the process of the Get.

A vocal campaign has been launched by so-called 'chained women' - or 'Agunot' - to force the religious authorities to take more action against those men who refuse their wives a Get.

Mr Frei says the Divorces (Religious Marriages) Act 2002 - the result of a private member's bill sponsored by Labour solicitor MP Andrew Dismore and passed by Parliament in July 2002 - will encourage recalcitrant spouses to give (in the case of a man) or receive (in the case of a woman) a Get.

Solicitors Deanna Levine and Sharon Faith are shortly to publish a guide - 'How to Get a Get' - aimed at lawyers and Jewish clients seeking divorce.

Ms Levine says the aim is to heighten the awareness of the Get procedure.

Clients seeking divorce may not care about a formal Get, and may appear contented with the civil procedure, but this can cause problems later if they choose to become observant, or wish to re-marry an observant Jew.

Lawyers also need to be aware of this when dealing with Jewish clients' divorces.

Notwithstanding plans to create Shari'ah-compliant mortgages, Islam itself does not have formal courts in the UK.

Makbool Javaid, a partner with City firm DLA, says: 'Unlike Judaism and Christianity, Islam has no clergy as such, and therefore courts tend to be more ad hoc and based around a local community and its imam.

'While in the UK these imams may give personal advice and opinions, an Islamic Shari'ah court can only exist in a fully Islamic state, where everything within that state's structure including the leadership, is Islamic.'

Mr Javaid explains that the figures for Saudi investment might not be the main motivation behind schemes to capture the Islamic clientele.

'There are now around two million Islamic people in the UK.

A high proportion of those are young and, therefore, of good earning potential.

It is an ideal demographic to encourage financial services and is potentially worth a great deal to that industry.'

Because interest payments are forbidden, Islamic mortgages are usually lease-based, with the lender taking the title of the property and leasing it to the customer in return for rental payments.

The property is transferred to the customer once all payments are completed - however, this system leads to multiple potential liabilities for stamp duty, which makes the product very expensive, hence the search for something that works better.

Mr Javaid points out that banks such as HSBC - which is currently looking at producing Islamic financial products - are entering a market where there is little competition and a huge market.

'Especially if you consider the wider European Islamic community, this represents a significant market.'

It is also a controversial market at the moment, with a looming confrontation between the West and Saddam Hussain, and the perceived associations between radical Islam and the al-Qaeda terrorists.

Mr Javaid says Islam is 'a different ideology from Western liberalism, and there are great contradictions between them'.

He explains: 'It's a different approach - one is perceived as the word of God, and the other is underpinned by a different philosophy.'

But he welcomes the innovation of new schemes to attract Islamic clients: 'I think every system needs legitimisation.

We obey something because we believe it to be legitimate, because there is not always going to be a policeman preventing you from going through a red light.

With Islamic law there is a certain belief in the system that should be cultivated.'