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The Accommodation and Regulation of Islam and Muslim Practices in English Law

Published online by Cambridge University Press:  31 July 2008

Urfan Khaliq
Urfan Khaliq
Affiliation:
Lecturer in Law, Cardiff Law School*
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Although it is indisputable that Muslims have been in Britain for centuries now, it is the events of the recent past that has increasingly focussed attention on the presence of what is now one of Britain's largest minorities. Like numerous other religious minorities in the United Kingdom, Muslims have established themselves and largely conduct their religious and cultural practices within the confines of English law. The aim of this article is to investigate how English law deals with Islam and the regulation, recognition and accommodation, if any, of certain Muslim practices, such as religious divorces and marriages and the establishment of places of worship. The article does not aim to be comprehensive in its coverage of all the issues raised by the Muslim population in the United Kingdom, especially the criminalisation of certain political activities which some Muslims consider to be religious obligations, but simply attempts to analyse how in some respects British Muslims regulate their activities and how a parallel but non-recognised legal system is now in operation and the extent to which English law makes provision for British Muslims and their practices, beliefs and needs.

Type
Articles
Information
Ecclesiastical Law Journal , Volume 6 , Issue 31 , July 2002 , pp. 332 - 351
Copyright
Copyright © Ecclesiastical Law Society 2002

References

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29 Town and Country Planning Act 1990, s 55(1).Google Scholar

30 Ibid. s 70(2). There is no one definitive case stating what ‘material’ considerations are, although the issue has been discussed on numerous occasions: see among others, Cambridge City Council v Pearse (1993) 8 PAD 281, David Wilson Homes v South Somerset District Council [1994] JPL 721, and Cooper v Secretary of State for the Environment (1996) 71 P&CR 529.Google Scholar

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39 There are exceptions to this, in particular, those which are registered under the Places of Worship Registration Act 1855. The consequence of registration is that the annual reports do not have to be submitted to the Charities Commissioner although the accounts are still subject to review, if the Commissioner so decides.Google Scholar

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63 Contrary to widespread belief, Islam does provide women with the right to a talaq, although cultural and customary practices have in effect limited its recognition in many instances.Google Scholar

64 With regard to the get in Jewish law, see Conway, J, ‘New Provisions for Jewish Divorces’ [1996] Family Law 368Google Scholar, and Freeman, M, ‘Is the Jewish Get Any Business of the State?’ (2001) 4 Current Legal Issues: Law and Religion (OUP, Oxford, 2001).Google ScholarThe basic position is identical in both cases. It is worth nothing that in Serif v Greece (2001) 31 EHRR 20, para. 50, the court recognised that the European Convention on Human Rights does not oblige states to give legal effect to religious weddings and decisions of religious courts.Google Scholar

65 For a fascinating study of the work of the Muslim Sharia Council London (MSCL), see Shah-Kazemi, S, Untying the Knot, Muslim Women, Divorce and the Sharia (Nuffield Foundation, London, 2001).Google Scholar

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68 The 1996 Family Law Act, s9(2), which dealt with the Jewish get, was very careful in ensuring that it did not award it legal recognition for the purposes of English law. This provision has not yet come into force, although a Bill before Parliment at the time of writing, the Divorce (Religious Marriages) Bill, if it comes into force, will essentially make provision to allow a court to require the dissolution of any religious marriage before granting a civil divorce.Google Scholar

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73 The scope of the Race Relations Act 1976 has been amended by the Race Relations Amendment Act 2000, although it is does not affect its scope for our purposes.Google Scholar

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91 I am grateful to the Department of Education for these figures.Google Scholar

92 This argument has been based upon the premise that schools of a similar standard and with similar facilities, established by different faith groups, have received state funding at the same time that applications from Muslim schools were denied. See, for example, the various discussion forums at http://www.muslimmedia.com and M Parker-Jenkins, ‘Equality before the Law: An Exploration of the Pursuit of Government Funding by Muslims Schools in Britain’ (1999) 1 BYU Education and Law Journal 119.Google ScholarThe notion of Islamophobia was extensively discussed and its existence first widely highlighted in Runnymede Trust, Islamophobia: A Challenge for Us All (Runnymede Trust, London, 1997).Google Scholar

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96 Ibid.

97 Schools Standards and Framework Act 1998, s 69.Google Scholar

98 Education Act 1996 s 352 (1)(a), read with the Schools Standards and Framework Act 1998, s 69, Sch 19. This does not apply to schools of a religious character, which are discussed infra.Google Scholar

99 Schools Standards and Frameworks Act 1998, s 70, Sch 20.Google Scholar

100 Ibid. Sch 20.

101 Previously under the Education Reform Act 1988, ss 25, 26.Google Scholar

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105 See the fascinating study by Spalek, B and Wilson, D, ‘Not Just Visitors to Prisons: The Experience of Imams who work inside the Penal System’ (2001) 40 Howard Journal of Criminal Justice 3.Google Scholar