On 23 March, Theresa May announced plans for a review of shariah councils in England and Wales, to examine their compatibility with British values, if the Conservatives win the May election. Shariah councils are bodies that issue divorce certificates for Islamic marriages, offer mediation and reconciliation services to couples married under religious law, and produce expert opinion reports on religious matters. An AHRC-funded research project concluded that the shariah council it studied (along with a Beth Din and a Catholic Tribunal) “provide[s] an important service for those Jews, Muslims and Catholics for whom a religious divorce ‘in the sight of God’ is important from both a spiritual and religious legal perspective”. The Home Office, while acknowledging the need for further evidence on the operation of shariah councils, appears concerned about the effect of their decisions on women (who, it suggests, may receive an insufficient financial settlement on a religious divorce) and the fairness of the procedures followed by shariah councils (particularly the possibility that their procedures discount women’s testimonies).
The call for a review of shariah councils has reignited older proposals for legislative change. But a 2012 British Academy Policy Centre Briefing and Report conclude:
“There are substantial gaps in our understanding of how minority legal orders [including shariah councils] are being adapted, interpreted and applied, and we know very little about the experience of their users … There is need for research on the interrelationship between these orders and the state legal system. This argues for extreme caution in proposing legislation that can significantly impact on any of these orders.”
Given this caution about legislative change in the face of insufficient evidence, it is worth thinking about whether the common law could be used to address some of the alleged problems with shariah councils. Private law is of limited relevance to the activities of shariah councils that are said to be of particular concern. However, common law judicial review might offer a solution.
On the face of it, the decisions of shariah councils look plainly unreviewable. Shariah councils are not governmental decision-makers. They do not wield the same power as the state. The parties before them seem to be there by choice. Courts in the UK have already held decisions of some religious authorities to be unreviewable. So the case against amenability to judicial review appears strong.
But there is a case to be made for amenability too. UK courts have reviewed the decisions of some religious authorities in the past (for example, R v Rabbinical Commission for the Licensing of Shochetim, ex parte Cohen (1987) Times, 22 December). Courts in some other jurisdictions, including Canada, are willing to review the decisions of a wide range of religious bodies (see, e.g., Alvin Esau’s contribution inLaw and Religious Pluralism in Canada). And there are substantive considerations that weigh in favour of amenability – as we shall now explain.
Judicial review of the Takeover panel in R v Panel on Takeovers and Mergers ex parte Datafin  QB 815 (‘Datafin’) was partly justified by reference to the “enormous power” and “giant’s strength” of the Panel, as well as the potential for abuse of power and breach of natural justice (Lloyd LJ). Shariah councils too have enormous powers, as recognised by UK courts. They have the potential to abuse their power to grant, deny, or delay religious divorces. There is evidence that they have, in fact, abused these powers in some cases. And the effects of such abuses are not to be underestimated: religious divorces are very important to the Muslim women seeking them, as research has shown. Samia Bano’s empirical study of shariah councils found that at least some women who attended the Council’s reconciliation sessions “felt they had little choice but to do so if they were to be issued with a divorce certificate”; that the reconciliation sessions made some women vulnerable to physical and emotional abuse; and that the council’s processes left women in a weaker position when negotiating financial settlements and access to children with their husbands.
Governmental interest and involvement
It is often said that a “potentially governmental interest in the decision-making power” (R v. Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth ex parte Wachmann  1 WLR 1036, 1041, ‘Wachmann’) is necessary for judicial review. The presence of a governmental interest is measured, perhaps, by the likelihood that the government would play a similar role in the decision-maker’s absence (Hoffman LJ and Farquharson LJ in R v Disciplinary Committee of the Jockey Club, ex p. The Aga Khan  EWCA Civ 7). Hoffmann LJ’s view in that case that religion is “not the business of government” might therefore seem to rule out any governmental interest in the activities of shariah councils.
However, the government does have an interest in marriage, divorce, and cohabitation. It already regulates such relationships in many respects. Some of the women who approach Sharia councils have entered into strictly religious marriages, i.e., marriages that lack legal recognition. But the government’s interest in marriage, divorce, and cohabitation extends even to strictly religious arrangements, as demonstrated by s. 10A of the Matrimonial Causes Act 1973 and the Divorce (Religious Marriages Act 2002). If shariah council decisions on religious marital status affect the financial interests of women and children, there is a particularly strong argument that a welfare state has an interest in these decisions.
Courts have sometimes said that a body’s decisions were not reviewable because the applicant had consented to that body’s jurisdiction (e.g. R v London Beth Din (Court of the Chief Rabbi) ex parte Bloom  COD 131). This is why shariah councils are not reviewable to the extent that they act as arbitrators (Wachmann 1041). However, the bulk of shariah councils’ work – that is, the granting of religious divorces – is non-arbitrable.
Shariah councils might be analogized to the Takeover Panel, held to be reviewable inDatafin. Just as those who wish to take advantage of the facilities of the securities markets needed to submit to the jurisdiction of the Panel, those who wish to obtain a religious divorce must submit themselves to a shariah council. In both cases the parties have such important interests at stake that their formal ‘thin’ consent to a body’s jurisdiction does not stand in the way of judicial review. This approach would also find support in Wachmann. In that case the contention that the decisions of the Chief Rabbi were not amenable to judicial review because “[n]o one is compelled to be a Jew … still less a Rabbi” was firmly rejected by Simon Brown J.
Courts have recognised that when people must consent to the jurisdiction of a body in order to preserve or obtain important interests (e.g. status as a religious leader inWachmann or even access to a market in Datafin), their submission to the jurisdiction of the body should not stand in the way of judicial review. Those seeking religious divorces in the UK have no choice but to approach a shariah council, and that they have an important interest in obtaining the religious divorce. So courts should not let their consent (such as it is) to a council’s jurisdiction stand in the way of judicial review. Further empirical evidence on this issue is sorely needed but the principle should be that [w]hen “genuine consent is absent, this is precisely when abuse of power is most likely and judicial protection most needed” (Beatson, Matthews and Elliott’s Administrative Law Text and Materials, p. 138).
Current polls indicate that it is unlikely that the Conservatives’ plan for a review of shariah councils will come to pass. Nevertheless, judicial review still has the potential to develop in this area. The case in its favour should not be underestimated. The British Academy Policy Centre Report argued that: “Statutory bodies such as the Equality and Human Rights Commission are … well placed to develop a system for regulatory oversight to support users, such as women seeking a religious divorce, who want to challenge the procedures or decisions of a minority legal order” (p. 52). Perhaps such bodies could support a well-chosen test case against a shariah council, bearing the costs of initial advice and supporting the litigant. But in the face of the British Academy Policy Centre’s warning as to the lack of reliable empirical evidence regarding shariah councils, public lawyers should be cautious about pushing for judicial review of shariah council decisions without further research.
There are tricky questions that we have skirted. For example, is it possible to subject the decisions of shariah councils to judicial review without hopelessly entangling courts in questions of religious doctrine? Supposing that such decisions ought to be reviewable in principle, on what grounds ought they be reviewable? The arguments for review for procedural impropriety, say, look stronger than the arguments for review for irrationality. What remedies ought to be available? More broadly, would reviewing shariah councils expose other religious bodies like Jewish batei din to judicial review? What is the relevance, if any, of Convention rights, particularly article 6 and article 9, to these debates?
We welcome ideas about how to answer any of our questions, or ideas about what other questions we should be asking.
This post originally appeared on the blog of the UK Constitutional Law Association here on 1 May 2015. It was co-authored with Farrah Ahmed.