Taking liberties with the law

By Geoffrey Alderman, August 22, 2011

In last week's JC, Daniel Greenberg considered a private member's bill currently before the House of Lords that seeks to address concerns emanating from reported practices of certain Sharia courts in the UK.

These concerns focus on three matters: discrimination against women, and the undermining thereby of anti-discrimination legislation; the use of such courts for the resolution of matters of a criminal or family nature (for the hearing of which secular courts already exist); and "jurisdiction by coercion" - meaning that members of the UK's Islamic communities are sometimes persuaded to submit to the jurisdiction of a Sharia tribunal through fear of religious sanctions.

The legal authority upon which Sharia courts operate is the Arbitration Act of 1996, which provides for the legally binding consensual resolution of disputes outside the secular court system.

Mr Greenberg took the opportunity provided by the tabling of the current private member's bill to spotlight certain practices in Jewish religious courts, basing themselves upon the same Act of 1996.

He specifically drew our attention to "jurisdiction creep" - the use, or perhaps abuse - of the Act to resolve matters that are often of a criminal and not a civil nature, and for which the Act was, in any case, never intended.

The dayans' priority was to keep the matter from public view

There is much that I agree with in Mr Greenberg's analysis. Indeed, he might have gone further. He instanced religious pressure brought to bear "within the Orthodox world" to contain, within the jurisdiction of a Beth Din, what amounts to the deliberate breaching of planning laws, and reminded us that building without planning permission is illegal and (therefore) a criminal matter.

He did not instance religious pressure to conceal cases of paedophilia and sexual and physical abuse, all of which are likewise criminal offences. Over the years, I have been asked to interest myself in several such cases. One that springs to mind was that of a Charedi lady who had accused her husband of sexually abusing their eight-year-old daughter.

She had in fact reported this to the police, but tremendous pressure was - successfully - brought to bear upon her, to persuade her to permit the local Beth Din to deal with the matter, which of course it never did, as the overriding priority of the dayanim was simply to keep the matter out of public view and prevent the lady from ever opening her mouth again on this subject.

But we should note that this way of thinking, which prioritises communal image (and indeed supposed communal priorities) above the law of the land, extends beyond activities which might be categorised as fundamentally criminal.

Last summer, I was asked to advise on several cases involving appeals against the decisions of taxpayer-aided Charedi schools to deny places to intending pupils. The parents of these children had the right, given to them by the law of the land, to appeal to what is essentially a secular tribunal.

Once again, pressure of a distasteful, quasi-religious nature was brought bear not to invoke this right; one father, who signalled his intention to withstand this pressure, was actually himself summoned to a Beth Din to answer the charge that, by insisting on his legal rights, he was guilty of having committed a grave religious infraction.

Before any Charedi analyst starts putting finger to word-processor to condemn me for singling out his or her community, let me add that this mind-set extends well beyond the Charedim.

In 2008, I was privileged to address, at the Regent's Park Mosque, a conference hosted by the Islamic Sharia Council of the UK. I was asked to talk to the conference on the interface between Jews, Judaism and English Law.

I shocked my audience by pointing out that, during the 1970s, the Board of Deputies persuaded the government to permit it - the Board - to establish panels that were empowered to vet Jewish applicants for Sunday trading registration, conduct the most searching inquiries and, if thought fit, deny a Jew the right to trade on a Sunday in "non-exempted" goods.

In my professional judgment, the manner in which these (now abolished) panels operated was, in general, disgraceful. But why had the Board established them? Frankly, in order to protect the communal image and prevent cases of Jews flouting the archaic Sunday-trading laws from reaching the public courts.

Religiously based tribunals - Muslim or Jewish (or, for that matter, Anglican) - have their place. They can usefully complement the law of the land. But they must never be permitted to replace it.

Last updated: 9:25am, August 22 2011