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The Council of Europe and Sharia: An Unsatisfactory Resolution?
Published online by Cambridge University Press: 12 April 2019
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On 22 January 2019, the Parliamentary Assembly of the Council of Europe agreed the text of Resolution 2253: Sharia, the Cairo Declaration and the European Convention on Human Rights. The Resolution begins – on an uncontroversial note – by reiterating ‘the obligation on member States to protect the right to freedom of thought, conscience and religion as enshrined in Article 9 of the European Convention on Human Rights … which represents one of the foundations of a democratic society’. It then goes on, however, to recall that the Assembly ‘has on several occasions underlined its support for the principle of the separation of State and religion, as one of the pillars of a democratic society’. This statement is not entirely non-contentious: it ignores the situation in several Member States of the Council of Europe and is based more on notions of laÿcitÕ than on the observable facts in countries such as England, Denmark, Finland and Norway that have state Churches. Unfortunately, this simplification and confusion set the tone for what is to follow.
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Footnotes
1
This comment is an expanded version of a blog post originally published on Law & Religion UK.
References
2 Available at <http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=25353>, accessed 5 February 2019.
3 Resolution 2253: Sharia, the Cairo Declaration and the European Convention on Human Rights, para 3. For example, in Recommendation 1804 of 2007 the Assembly asserted that ‘one of Europe's shared values, transcending national differences, is the separation of Church and State. This is a generally accepted principle that prevails in politics and institutions in democratic countries’ (para 4).
4 Finland has two: the Evangelical Lutheran Church and the Orthodox Church. It is also contentious in countries that do not have a state Church as such. In Malta, for instance, Article 2 of the Constitution declares that ‘The religion of Malta is the Roman Catholic Apostolic Religion. The authorities of the Roman Catholic Apostolic Church have the duty and the right to teach which principles are right and which are wrong.’ See generally N Doe, Law and Religion in Europe: A Comparative Introduction (Oxford, 2011).
5 Resolution 2253, para 4.
6 Ibid, para 5.
7 Ibid, para 6.
8 Ibid, para 7.
9 Ibid, para 8.
10 Ibid, para 15.
11 [2007] EWCA Civ 1022.
12 In Ulman v Live Group Pty Ltd [2018] NSWCA 338, however, the Court of Appeal of New South Wales upheld a finding of criminal contempt of court against the judges (dayanim) and registrar of the Sydney Beth Din for threatening religious sanctions against a party to a commercial dispute who refused to submit to its jurisdiction: see F Cranmer, ‘May a religious tribunal threaten an uncooperative party with religious sanctions? Ulman’, Law & Religion UK, 28 December 2018, <http://www.lawandreligionuk.com/2018/12/28/may-a-religious-tribunal-threaten-an-uncooperative-party-with-religious-sanctions-ulman/>, accessed 6 February 2019.
13 See, for instance, Douglas, G et al. , ‘The role of religious tribunals in regulating marriage and divorce’, (2012) 24:2 Child and Family Law Quarterly 139–157Google Scholar.
14 See Douglas, G, ‘Who regulates marriage? The case of religious marriage and divorce’ in Sandberg, R (ed), Religion and Legal Pluralism (Farnham, 2015), pp 53–66Google Scholar.
15 Sandberg, R and Thompson, S, ‘Relational autonomy and religious tribunals’, (2017) 6:1 Oxford Journal of Law and Religion 137–161Google Scholar.
16 Thompson, S, Prenuptial Agreements and the Presumption of Free Choice: issues of power in theory and practice (Oxford, 2015)Google Scholar; Thompson, S, ‘Feminist relational contract theory: a new model for family property agreements’, (2018) 45:4 Journal of Law and Society 617–645CrossRefGoogle Scholar. Thompson's suggested approach was applied by the Australian courts in Thorne v Kennedy [2017] HCA 49; see Thompson, S, ‘Thorne v Kennedy: why Australia's decision on prenups is important for English law’, (2018) 48 Family Law 415–419Google Scholar.
17 See Mant, J and Wallbank, J, ‘The mysterious case of disappearing family law and the shrinking vulnerable subject: the shifting sands of family law's jurisdiction’, (2017) 26:5 Social and Legal Studies 629–648CrossRefGoogle Scholar; Mant, J, ‘Neoliberalism, family law and the cost of access to justice’, (2017) 39:2 Journal of Social Welfare and Family Law 246–258CrossRefGoogle Scholar.
18 In Akhter v Khan [2018] EWFC 54 the core issue was whether or not a nikah ceremony that had never been validated by a subsequent civil registration was a non-marriage or gave rise to a void marriage; Williams J held that, because the couple had four children, it was appropriate to take their interests into account (para 93b). See Cranmer, F, ‘Does an unregistered nikah wedding give rise to a valid marriage, a void marriage or a non-marriage?’, (2019) 41:1 Journal of Social Welfare and Family Law 96–99CrossRefGoogle Scholar.
19 In the same way that there will be differing intentions or lack of intentions among cohabiting couples generally, as discussed by Barlow, A and Smithson, J, ‘Legal assumptions, cohabitants' talk and the rocky road to reform’, (2010) 22:3 Child and Family Quarterly 328–350Google Scholar.
20 The first findings from the latest British Social Attitudes Survey have revealed that almost half of respondents in England and Wales – 46 per cent – believed that unmarried couples who live together had a ‘common law marriage’ with the same rights as couples that are legally married, and that only 41 per cent knew that common law marriage is a myth: National Centre for Social Research, ‘Almost half of us mistakenly believe that common law marriage exists’, 22 January 2019, <http://www.natcen.ac.uk/news-media/press-releases?alttemplate=SharedNews&y=2019&m=january&n=almost-half-of-us-mistakenly-believe-that-common-law-marriage-exists>, accessed 5 February 2019.
21 Sandberg, R and Thompson, S, ‘The sharia law debate: the missing family law context’, (2016) 177 Law & Justice 181–192Google Scholar.
22 Integrated Communities Strategy Green Paper, Cm 9560 (London, 2018).
23 Home Office, ‘The independent review into the application of sharia law in England and Wales’, Cm 9560 (2018).
24 Ibid, p 58.
25 Britain Yearly Meeting 2018, Quaker Faith & Practice, ‘Quaker marriage procedure’, 16.18, 16.20, 16.61, available at <https://qfp.quaker.org.uk/chapter/16, accessed 5 February 2019.
26 R Sandberg, ‘Criminalising imams will not solve the problem of unregistered marriages’, LexisNexis Family Law blog, 15 January 2019, <https://www.familylaw.co.uk/news_and_comment/criminalising-imams-will-not-solve-the-problem-of-unregistered-marriages>, accessed 5 February 2019.
27 Nicola Barker's work usefully distinguishes between the structure, consequences and ideologies of marriage: Barker, N, Not the Marrying Kind: a feminist critique of same-sex marriage (London, 2012), pp 22–23Google Scholar.
28 Thompson, S and Sandberg, R, ‘Multicultural jurisdictions: the need for a feminist approach to law and religion’ in Sandberg, R (ed), Leading Works in Law and Religion (London, 2019), pp 179–196Google Scholar, at p 195.
29 Resolution 2253, para 8.
30 Cranmer, F and Thompson, S, ‘Marriage and civil partnership in Northern Ireland: a changing legal landscape’, (2018) 30:3 Child and Family Law Quarterly 301–320Google Scholar.