Sunday Telegraph and alarmist reporting on legal guidance for Islamic wills

ITV News, The Sunday Times, The Daily Mail, The Independent and Daily Express all report on The Sunday Telegraph front page story on the introduction by the Law Society of guidance in relation to preparing shari’ah compliant wills for clients requesting the service.

The Law Society has produced a practice note to “assist solicitors who have been instructed to prepare a valid will, which follows Sharia succession rules.”

The guidance outlines rules on Islamic inheritance, such as the differential share between men and women. Its guidance notes states that “they are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them… Practice notes are not legal advice”.

However, the Sunday Telegraph proclaims that “Islamic law is to be effectively enshrined in the British legal system for the first time”. It goes on to say it will “prevent children born out wedlock – and even those who have been adopted – from being counted as legitimate heirs”.

Some lawyers have expressed disquiet with the guidance saying the practice note is “astonishing”. The papers also report campaigners are warning the note could lead to a “parallel legal system” for Britain’s Muslim communities.

The Sunday Telegraph repeats the claims first made in a report by Denis MacEoin for Civitas, in which the number of Shari’ah councils operating in the UK was estimated to be 85. The paper further notes the call by Labour MP, Barry Sheerman, for a parliamentary inquiry into how widespread the use of the councils is in the UK.

The newspapers invite Baroness Caroline Cox to comment on the guidance notes, neglecting her biased view on matters. Cox has introduced a Bill, The Arbitration and Mediation Services (Equality) Bill, under which anyone ‘falsely claiming or implying that sharia courts or councils have legal jurisdiction over family or criminal law’ could be faced with a five year jail term.

Cox said: “Everyone has freedom to make their own will and everyone has freedom to let those wills reflect their religious beliefs. But to have an organisation such as The Law Society seeming to promote or encourage a policy which is inherently gender discriminatory in a way which will have very serious implications for women and possibly for children is a matter of deep concern.”

What has unfortunately not been recognised is the opportunity for the state and religious bodies to co-operate. In Rowan William’s article in a three part series in Prospect magazine on the edited collection by Robin Griffith-Jones, the former Archbishop of Canterbury points out there is a history of partnership between the state and the Church of England in the provision of education where both parties have found ways to accommodate one other.

Elizabeth Cooke, Professor of Law at Reading University and member of the Law Commission, expands on the concept of “accommodation” in the second series, arguing that it does not necessarily mean legal pluralism in the sense that a person’s religious identity might force an individual into a particular system. She highlights Baroness Butler-Sloss and Mark Hill’s contribution in “Family Law: Current Conflicts and Their Resolution”:

“The religious and cultural traditions of the parties in an English court may, and often will, be relevant to their approach to the issues between them; but English law, and only English law, applies.

There is … no question of the jurisdiction of English secular courts being delegated or ceded to the courts or tribunals of religious organisations.”

Maleiha Malik, Professor of Law at King’s College, develops further on this in the third part of the series arguing that Islamic law can be reconciled with English law using cultural voluntarism, as has already been evidenced in legal cases.

The approach “assumes that minorities such as Muslims should have the freedom and the autonomy to be able to live according to their preferred social norms, legal rules and religious law, except that at all times judges and legislators have the right to intervene where there is incompatibility with an important principle of English law or, most crucially, a conflict with constitutional or human rights norms.”

Such an approach allows for individuals to develop their own “insider” response to injustice and discrimination while providing for constructive dialogue between mainstream state institutions and minorities.

Perhaps this is exactly what the Law Society was attempting – to create a constructive dialogue by seeking a common ground between English law and the Sharia law for Muslim clients. 

According to the Daily Telegraph, the President of the Law Society Nicholas Fluck said it was “inaccurate and ill informed” to see the guidance as “promoting” shari’ah law.

He emphasised “The Law Society responded to requests from its members for guidance on how to help clients asking for wills that distribute their assets in accordance with Sharia practice. Our practice note focuses on how to do that, where it is allowed under English law.

“The Law of England and Wales will give effect to wishes clearly expressed in a valid will in so far as those wishes are compliant with the law of England.”

None this this stops the Sunday Telegraph opining in its editorial that the Law Society guidance emboldens ‘the radicals’ anti-integration agenda’. Nor from asserting that ‘recently there has been a proliferation of sharia courts, which are potentially in conflict with English law. The Law Society’s guidelines would further legitimise those courts’.

Of course if there were evidence of shari’ah tribunals acting ultra vires, this would be a matter for the legal system to enforce the conditions established by the Arbitration Act. The idea, as suggested by the ST, that this is a problem snowballing into something greater, however, is unproven and unnecessarily alarmist.

The editorial introduces Baroness Cox as someone who ‘campaigns for the rights of Muslim women and is concerned that some women in Britain experience serious problems as a result of the application of sharia.’

It fails to address the obvious question, of how someone who is genuinely a campaigner for ‘the rights of Muslim women’ could invite someone like Geert Wilders to the House of Lords knowing his record of anti-Muslim diatribes.

But more interesting is the claim that the guidance will ‘disadvantage women, children involved in custody battles, illegitimate or adopted heirs, and a significant number of men who, for one reason or another, fall foul of its [shari’ah’s] precepts’ itself promulgates the idea of a ‘parallel legal system’.

As Neil Addison, a barrister and author of A Guide to Religious Freedom and Law, observes in his letter to the Sunday Telegraph:

“English Law permits people to draft wills according to their own desires.  If they want to give less to daughters than sons then they are allowed to do so.  If they only want to bequeath money to persons of a specific religion, whether Muslim, Mormon or Methodist then they are entitled to do so just in the same way that they are entitled to cut a child out of the will for any irrational reason they wish.  Many relatives disagree with how particular wills are written but that is the decision of the person making the will. 

“The job of a lawyer is to draft a will that reflects the clients wishes it is not the job of a lawyer to impose their views on the Client or to draft a will that would be “socially acceptable” to the Equality and Human Rights Commission; the Equality Act does not extend to the dead, yet.

“The critics of the Law Society have in fact got a lot in common with extremist supporters of Sharia.  Both want to impose their views on others rather than allowing individuals to make their own choices including choices as to how to dispose of their own property after their death.”