Attempting to Alter the Legal Framework: the Arbitration and Mediation Services (Equality) Bill

The drafted Arbitration and Mediation Services (Equality) Bill aims at averting paralleljustice. Alternative dispute resolution offers disputants the opportunity of getting quick and cheap decisions out of court and - if they want - according to principles of a law other than the English. Baroness Cox and her supporters say that institutions like shari^ta councils and mat use al­ternative dispute resolution to exercise Islamic jurisdiction in the UK. While the Bill, “recognises legitimate forums for arbitration, including Muslim arbi­tration tribunals” which adhere to the provisions of the Arbitration Act, Cox is concerned that, “some [tribunals] are practising sex discrimination” and, “acting outside their remit; for example, by deciding cases relating to crimi­nal law“.i5⁴ This is why the Bill intends making, “further provision about arbi­tration and mediation services and the application of equality legislation to such services”,i55 and thus aims to eliminate any potential breeches of basic rights.

Since the prevention of gender discrimination is one of its central aspects, the Bill would, by amending the Equality Act 2010, prohibit “anything that constitutes discrimination, harassment or victimisation on grounds of sex”i5⁶ when providing arbitration services. It would furthermore define that amongst such actions were unequal acceptance of men and women as witnesses as well as awarding men and women unequal shares of estate or property.^{[156] [157] [158] [159] [160] [161] [162] The same provisions would be introduced into the Arbitration Act 1996.158 The possibil­ity of letting the arbitrator(s) decide on evidence rules would thus be reduced, as the classical Islamic combination of two female witnesses replacing one male witness would surely count as “unequal acceptance” of the two sexes. The prohibition to award male and female parties unequal shares on grounds of sex would be relevant in inheritance disputes, as the Islamic law of succes­sion often privileges to male heirs.159 On its website, however, mat does not list inheritance cases under the heading of arbitration and states that their, “decision regarding the shares of the various parties concerned according to Islamic law” could be placed, “before the civil court as evidence of what the deceased would have known and intended.’960 Accordingly, a decision of mat concerning an inheritance is not legally binding under the Arbitration Act 1996 and thus the Bill would not be effective in this particular matter.}

Siddiqi severely criticises the Bill as being illogical, which is why in his opin­ion the government cannot accept the Bill. If it was enacted, however, this would not necessarily affect mat's work, he says.

Another regulation of the draft Bill is laid down as an amendment to the Courts and Legal Services Act 1990, making, “[f]alsely claiming legal jurisdiction”^² “an offence and liable on conviction on indictment to impris­onment for a term not exceeding 7 years.”i6³ mat has always been clear about its nature as an arbitration tribunal, with only the media calling it a “sharia court”. When acting under the Arbitration Act 1996, mat does not claim to be anything else but an arbitration tribunal. However, other services such as mediation and counselling are offered by the institution under the name of “Muslim Arbitration Tribunal”, and this seems to be confusing the media, who apparently misapprehend those as being procedures of “jurisdiction” although they do not generate legally binding effects. The fact that Siddiqi at times re­fers to their non-administrative staff as “judges”^{[163] [164] [165] [166] [167] [168] may be misleading, too. Moreover - as access to hearings could not be obtained - it is unclear to me whether clients always understand what the different procedures mean and if they are aware of the competences mat's scholars have or do not have. It seems that Siddiqi solves many disputes “incidentally”, as Bowen says, without keeping records or categorising them explicitly as an official ADR procedure.^5 If people rather experience such procedures as guidance from a spiritual lead­er, then this could rather be called “not claiming mundane jurisdiction”.}

As to the accusation that mat was handling cases relating to criminal law, mat announces on its website: “mat is unable to deal with criminal offences as we do not havejurisdiction to try such matters in the UK.”166 This rather means that it cannot prosecute and punish offenders, as the police and English courts can, and Siddiqi is very clear about this. But it does not mean that mat could or would simply not act if addressed in a case involving domestic vio­lence. This issue shall be addressed in the following section.

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