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Religious courts in England Religious courts in England

England has several different kinds of ecclesiastical courts. These use religious law, such as the Islamic sharia, Jewish halakha and Christian canon law. Church of England courts are now restricted to internal church matters, but not the others. In 2012 a bill was put before the UK parliament that would forbid sharia courts to claim official sanction as arbitration tribunals.

State-sanctioned Church of England courts

The state church of England runs a hierarchy of ecclesiastical courts where cases are decided in accordance with its own church laws. [1] These took over from the religious tribunals set up by the Catholic Church during the Middle Ages, the most notorious ones being the Courts of the Inquisition.

However the Protestant reformers didn’t adopt the Catholic canon law for use in their own courts, because this derived from decrees by popes and church councils. After the Reformation, therefore a new start was made. In 1604 King James I approved 141 canons, and this small collection was not revised for more than two centuries.) [2] These are known as the Canons of the Church of England.

Until well into the nineteenth century, the English state church was allowed to issue rulings agains the public based on this new canon law. Church of England courts probated wills, appointed administrators, ruled in questions of legitimacy, heard charges of defamation, enforced the payment of tithes (even by non-Anglicans) and handed down judgements on people’s marriages.

A major change in the marriage laws occurred when the English Reformation led to the possibility of divorce. Martin Luther had declared marriage to be “a worldly thing...that belongs to the realm of government”, and Calvin concurred. [3] The English Puritans put this into practice, making marriage purely secular. In 1644 they passed an act in parliament asserting “marriage to be no sacrament”. It was no longer regarded as indissoluble and divorce became possible. And in 1653 they voted that it be no longer performed by a minister, but by a justice of the peace. However, even a second marriage act failed to transfer divorce and annulment cases to the temporal courts and this made it easier to turn the clock back after the Restoration.

In 1753 the Church of England was once again put in charge of all marriages (including those of Catholics, but not of Quakers and Jews). English marriage law became much less liberal than that of any other Protestant country. Divorce was unknown to the ordinary English law, and a special act of Parliament, at enormous expense, was necessary to procure it in individual cases. [4]

Under this system, the first step towards a divorce was to prove before a church court in the local diocese, the Consistory Court, that there were sufficient grounds. If the grounds were adultery and this was accepted by the church court, the second step was for the husband to sue the other man in a civil criminal court for damages to his property (which is how the law regarded his wife). The third and final step required the passage of a private bill through parliament. In addition to the great expense, this could involve lengthy debates about the couple’s marital problems in public in the House of Commons. [5]

Church of England courts give up jurisdiction over laymen

Gradually, in the course of the nineteenth century, most of the functions of the Church of England courts were taken over by the state [6] and after 1857 they were no longer allowed to rule in marriage cases. [7] Today only internal Church matters remain under their jurisdiction. Yet the residual functions exercised by Church of England courts are still bound up with the state. They are guaranteed by state legislation brought forward as “Church measures”. [8] All of them require the formality of royal assent, and some also need to be passed by parliament, as well. Whatever route they take, these regulations governing the state church end up as the law of the land. [9]

Contemporary Church of England courts are confined to settling disputes involving church property and bringing before “disciplinary tribunals” clerics who violate church doctrine. Because these courts apply canon law, they can punish as “misconduct” clerical behaviour which contravenes no secular law, such as a priest getting a perfectly legal divorce. [10] Church of England ministers are further disadvantaged because they have no workers’ rights under the 1999 Employment Relations Act and the Church of England is trying to keep it that way. [11]

Church of England clergy have asked for all the employment rights enjoyed by other workers except one ― the right to refuse to work on Sundays. To counter this, the Church of England successfully claimed in 1997 that clergy were not employed by the bishop but by God, and one can’t take Him before an employment tribunal. [12] When the church had to drop this in 2008 it switched to arguing that clergy are not “workers” but “office holders”. [13] This manoeuvre, if successful, would also protect the church against legal liability for clerical abuse.

Jewish beth din courts recognise “the law of the land”

Like Church of England courts in earlier times, the other ecclesiastical court systems still preside over laymen, and still focus on marriage. Thus the Orthodox Jews have beth din (house of judgement) courts, Muslims have sharia courts and Catholics have diocesan and archdiocesan courts located in Britain and higher courts in the Vatican.

The beth din courts which administer Jewish halaka law have a long tradition of respecting the secular law and have not caused the same controversy as the sharia courts. A Talmudic principle, formulated in Aramaic in 242 AD, states that “the law of the land is the law”. This accommodates Jewish law to the secular statutes, gives them precedence where there is conflict and endows them with the force of halakha. [14]

Sharia courts seek parity but lack modern standards

However, the Muslim religious law does not always defer to secular law and this has caused controversy in the UK. an excellent account of scharia by a legal expert is Charlotte Proudman's A Practical and Legal Analysis of Islamic Marriage, Divorce and Dowry. [15]

Some of the features of sharia law which cause concern are listed below, and many of these are shared to some degree by other systems of religious law.

―  Secular laws get their authority from upholding human rights and being voted in by a democratic legislature. Sharia does not.

  There is also no formal certification process to designate someone as being qualified to interpret Islamic law. “Almost anyone can make rulings as long as they have the appearance of piety and a group of followers.” [16]

  Sharia courts lack many procedures developed to ensure consistency and fairness. They do not take care to ascertain the facts by means of pre-trial witness interviews and cross-examination of witnesses. They also do not admit certain modern types of evidence such as medical examinations or DNA testing. This means that the court must rely on witnesses in order to prove rape. Four witnesses are needed if they are men and  since a woman’s testimony is only worth half of a man’s ― eight, if they are women. [17]

  Sharia court decisions are generally not published or even made open to public inspection. It is reported that the English Ministry of Justice didn’t manage to get access to records of sharia court rulings. [18] This hinders the growth of a legal consensus, allowing sharia judgements to lack consistency.

  Even sharia’s legal terms may be variously understood by different judges. In a 2005 Saudi case none of the law experts who testified agreed on the proper elements of a key sharia concept. [19]

  Sharia gives enormous power to the judge, who is not constrained by juries or even binding legal precedents (stare decisis). Yet since there are no lawyers to represent plaintiffs and defendants, no one is likely to contest the judge’s interpretation of the law. And judicial power is further bolstered by the premise that “the judge applies the verdict of God”. [20]

  Rather than trying to change sharia law to conform to human rights, some Islamic states are trying to change human rights to conform to sharia. This led to the 1990 Cairo Declaration of Human Rights in Islam. However, Adama Dieng, a respected Muslim authority in international human rights law, rejects this approach. He claims that sharia law “introduces, in the name of the defence of human rights an intolerable discrimination against both non-Muslims and women.” [21]

Sharia courts seek to make their rulings legally enforceable

However, in spite of their deficiencies, sharia courts have tried to claim legal status in Britain as arbitration tribunals. Arbitration is a procedure where both sides to a dispute agree to let a third party, the arbitrator, decide. His decision is made in accordance with whatever laws or regulations are agreed upon by the parties concerned, and is legally binding. [22] In 2008 Said Siddiqi, an official of the sharia court system, said, “We realised that under the Arbitration Act we can make rulings which can be enforced by county and high courts”. [23]

He was apparently hoping to replicate in the UK what had initially succeeded in Canada. In 1991 the Canadian Province of Ontario was looking for ways to ease the burdens of a backlogged court system. It changed its Arbitration Act to include “faith-based arbitration” – a system where Muslims, Jews, Catholics and members of other faiths could use their religious law to settle family disputes such as divorce, custody and inheritance outside the court system. [24] Although the system was “voluntary”, with both parties, (husband and wife) agreeing to go through the process, the decisions rendered by the tribunal would have become binding and could be enforced by the Canadian police and courts.

That’s when the Muslim lawyer Syed Mumtaz Ali who was advocating sharia arbitration courts for Ontario made the mistake of laying his cards on the table. In 2003 he claimed that once Islamic-based arbitration was available, all “good Muslims” would be expected to have family matters resolved only in sharia courts, and no longer use the secular courts. [25] Faced with the prospect of religious compulsion and a parallel system of justice, in 2005 Ontario banned all legally recognised religious arbitration.

Three years later, in 2008, the same issue was highlighted in Britain by Mr. Sidiqqi’s claim that sharia courts had official status there. However, a couple of months later Minister of Justice Jack Straw emphasised that the state would not enforce religious arbitration when it applies to matters of family law like divorce or child custody. “Arbitration is not a system of dispute resolution that may be used in family cases.” [26]

This restriction is essential because of the vulnerability of the immigrant Muslim women who use these courts. There they are deprived of the safeguards of the secular law and even of the lawyers who usually represent the parties in commercial arbitrations to protect their rights. Yet a guide for business people cautions against agreeing to any arbitration rules other than the law of the land. “Be warned, the parties CAN agree to go outside the law but then they are putting all their trust in the arbitrator.” [27] If even business people with lawyers are advised to be wary of a secular arbitration procedure, what chance have immigrant women in a patriarchal subculture who believe that the imams’ judgements are legally binding and even reflect the will of Allah?

When opposing this, English law does not claim infringement of human rights, but relies instead on precedents. Thus, in a situation like this English common law can invoke the 1980 “Edgar principle”. According to this, an agreement can be weakened or even nullified by

undue pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement. [28]

This appears to be the justification for not allowing any tribunal to usurp the functions of the secular family courts with their safeguards to protect the vulnerable. In fact, in 2012 an English appeal court stepped in to oblige a Muslim to pay his ex-wife alimony, even though he claimed that under Sharia he had no obligation to do so. [29]

The supremacy of secular courts would be strengthened by a bill put before the British parliament in 2012. It would

make arbitration services in the UK subject to equality laws and to bar any arbitration where parties are of unequal standing; for example, it would disallow arbitration providers placing greater weight on the testimony of one party over another, as is the case with sharia law where a wife’s word is worth only half of her husband’s. [30] The Bill will also create a criminal offence and make it illegal for arbitration bodies to pretend they have greater jurisdiction than they do – in other words, preventing them from misinforming people that they must obey their rulings. It will also place a duty on public bodies in the UK to inform women of their rights under British law. [31]

These legal measures do not, however, address the problem of women who informally approach their imams for advice on what to do. A Swedish investigative news programme sent women to the largest mosques there, posing as abused wives seeking help. The religious leaders at six of the ten mosques told the women that they should not report the abuse  a crime  to the police.  Mohammad Fazlhashemi, a professor and author of books on Islam said, “Considering the fact that the mosques have received state funding, they have also committed to following Swedish law and the basic principles of democracy”. [32]

And an undercover reporter for the BBC found the same thing in Britain. An Islamic Sharia Council actively discouraged women who reported violent abuse from going to the police and urged them, instead, to remain with their dangerous husbands. [33]

Vatican high court proceedings found to violate human rights

Other ecclesiastical court systems have also been found wanting. The British lawyer Geoffrey Robertson QC argues that in cases of clerical abuse recourse to a Catholic ecclesiastical court is utterly inappropriate because it “has no public hearings, no DNA test facilities, no enforcement mechanism, and the most severe punishments – excommunication or an order to return to the laity (without entry on a sex offenders’ register) – bears no comparison with the sentences of imprisonment or community service that can be expected under criminal law.” He describes the penalties as “derisory”, with those found guilty of molesting children required to undergo “chiefly spiritual exercises”. [34]

Even one of the highest Catholic courts at the Vatican has been found to fall far short of  modern legal standards. In a case that came before the Roman Rota in 1988 witness statements were not provided to parties, thus depriving them of an opportunity to comment on them. The parties were not told that they could appoint lawyers to appear for them, nor advised of the terms of the legal submissions made by the canon lawyer appointed by the court to argue against annulment. Finally, the parties were not allowed to see a full copy of the Rota’s judgment, in which the ecclesiastical court set out its reasoning.

In a damning indictment, the European Court of Human Rights found in 2001 that the procedures of the Vatican's normal appeal court, failed to reach the standards required for a fair trial under article 6(1) of the European Convention and that, therefore, its judgments could not be recognised or enforced anywhere in Europe. [35]

Waiting in the wings?

The privileged position of the Church of England, combined with its demographic decline, has left the other religious groups pressing for their share of the religious pie. [36] The Muslims, as Britain’s fastest growing religious group, have taken the lead (and the flak) in trying to take advantage of the Arbitration Act. Other religious groups have been more circumspect, though this may be merely a matter of strategy.

The Archbishop of Canterbury appears to be reconciled to the introduction of Sharia courts, even though these do little to punish wife-beaters. Instead of standing up to protect the vulnerable and insisting that their oppressors face the full penalties of the law of the land, His Grace equivocated. In 2008 he raised a storm of protest by calling Sharia law in the UK “unavoidable”. And he went further: “An approach to law which simply said ― there’s one law for everybody ― I think that’s a bit of a danger”. [37]

For over two centuries the courts of his own church were allowed to preside over marital disputes and it wasn’t until 150 years ago, that the Archbishop of Canterbury lost his legal right to meddle in people’s most private affairs. Yet now His Grace has expressed a sudden eagerness to let the imams do precisely that. Is it possible that his new-found enthusiasm for Sharia divorce courts might reflect a desire to get back into that business himself?

Throughout all of this, the Vatican has remained silent, letting the Sharia courts blaze the trail, and the Archbishop of Canterbury face protests over his acquiescence to them. This is probably the most prudent course of action, especially since in England suspicion of the Vatican lingers on. It is still remembered that Pius V tried in 1570 to depose “Elizabeth, the pretended queen of England and the servant of crime” by excommunicating anyone who obeyed her [38] and that in 1588 Sixtus V blessed the Spanish fleet sent to conquer England and return it to the Catholic fold. [39] Even today there is friction due to Benedict XVI’s invitation to conservative Anglicans to join his church which has led to charges of “poaching”. [40]

However, the Vatican’s moves elsewhere suggest that its display of reserve in England may just be a matter of strategy. In some other countries it has tested to moves in the direction of introducing canon law ― and the courts that go with it ― into secular society.

― Largely unrecognised in the English-speaking world (which lacks concordats) is the fact that these can serve as a vehicle for introducing canon law into society. A standard concordat clause insists that canon law be used in Church institutions, which, of course, includes church-run schools and social services. Through these canon law regulates the services offered and even the private conduct of lay church employees. [41] And another standare concordat clause ensures that Church-run social services get the same funding as state ones, so that the taxpayer ends up paying for the enforcement of religious law.

― The Vatican’s efforts to convince the public of the merits of canon law is another indication that, over the long run, it harbours hopes for its widespread acceptance. There are many canon law societies around the world [42] and in 2010 the one in the United States teamed up with the US Conference of Catholic Conference of Bishops to sponsor a day-long seminar on canon law for the media. [43]

―  And finally, in at least two different parts of the English-speaking world the Vatican has been making little-noticed legal moves towards recognition of church courts.

In Ohio in 2005 Ave Maria School of Law professor Stephen Safranek submitted an argument to the state court that a divorce case should be transferred to a Catholic Ecclesiastic Tribunal for arbitration because both parties were Catholic. [44] However, in 2010 the Ohio court ruled against this. [45]

Three years later, in 2008 there was another legal probe, this time in New Zealand. The isssue was whether, for the purposes of the New Zealand Privacy Act, Catholic courts are to be treated like the state courts that are enacted by parliamentary statute (that is, are “statutory”). The Catholic Church of New Zealand argued that they should be because, though non-statutory, they nevertheless act judicially. The Church hoped to get its courts accorded the same privacy as statutory courts, where there is no disclosure of personal information, transcripts or minutes of the proceedings. However, the judge didn’t accept the argument because, as he said, they are not constituted by law (through a parliamentary statute) and they do not follow the rule of law (which includes permitting cross-examination and allowing parties access to the evidence put to the tribunal). The judge also rejected the idea that disclosure of the proceedings of church tribunal would violate religious freedom.

The Church then asked to appeal and the judge granted this, as the matter concerned not only church courts but other kinds of non-statutory tribunals set up by professional associations and members’ clubs to determine matters such as discipline and membership. Nevertheless the Church decided not to make use of its right of appeal and the matter went no further. [46]

This looks like a strategic decision to retreat, rather than suffer a defeat. However, the Vatican famously “thinks in centuries” and will doubtless try again ― and again. Meanwhile, in places like Britain the threat will be overlooked because “it can’t happen here”. It may take another generation, one that has attended the increasing numbers of religious schools in Britain, before it finally does “happen here”.

Further reading

Religious arbitration is not confined to the UK: see "In Religious Arbitration, Scripture Is the Rule of Law", New York Times, 2 November 2015.
And forced arbitration is also used by companies: see "Forced Arbitration", National Association of Consumer Advocates


* Wendie Ellen Schneider, [Review of the book Sexual Slander in Nineteenth-Century England: Defamation in the Ecclesiastical Courts, 1815–1855].

1. Canons of the Church of England, Section G, “Ecclesiastical courts”, 25 June 2010.

2. Robert W. Prichard, “The Making and Re-Making of Episcopal Canon Law”, Anglican Communion Institute, 15 February 2010. 3. episcopal-canon-law/

3. David L. Snuth, “Divorce And Remarriage From The Early Church To John Wesley”,
Trinity Journal 11.2 (Fall 1990).

4. Havelock Ellis, Studies  in the Psychology of Sex, Volume 6, Chapter 10: Marriage, 1927 .

5. “Georgian & Regency Divorce” 25 April 2010.

6. Felix Makower, Constitutional History and Constitution of the Church of England, 1895, pp. 451-53.

7. For legislative details, see:  “Matrimonial Causes Act 1857”, Wikipedia.

8. The two laws are the Ecclesiastical Jurisdiction Measure 1963 and the Clergy Discipline Measure 2003. Amendments to these are also included in the “Church of England Measures”.

9. “Church of England Measures are the instrument by which changes are made to legislation relating to the administration and organisation of the Church.” A special parliamentary committee sponsors these “Church measures”, authorising them to get them through  parliament and forwarded for royal assent. (Others go via the Home Secretary directly to the Queen and some may even be introduced to Parliament as private members’ bills.)

The customary route, which requires seeking both parliamentary approval and royal assent, is a two-step process.

First the changes are proposed to Parliament’s Ecclesiastical Committee:

Then, if the Measures are considered “expedient” by the Ecclesiastical Committee, it forwards them for consideration of both houses of parliament and the Queen:

10. Clergy Discipline Measure, 2003, §30-31 (“matrimonial orders”).

11. “Unite calls for two bishops to resign for allowing ‘culture of bullying’ in Worcestershire diocese”, Unite, 16 December 2009.

12. “Clergy close to workers' rights”, Telegraph, 19 January 2004.

13. “Church of England concedes clergy work for church”, Personnel Today, 29 September 2008.

14. “Dina De-Malkhuta Dina”, Encyclopedia of Judaism.

15. Charlotte Proudman [barrister and author of Forced & Arranged Marriage Among South Asian Women in England and Wales. Critically Examining the Social & Legal Ramifications of Criminalisation"(2011)], "A Practical and Legal Analysis of Islamic Marriage, Divorce and Dowry",  Family Law Week, 31 May 2012.

16. “Shariah law: FAQs”, CBC News Online, 26 May 2005.

17. Islamic Sharia Council (UK),  “On the testimony of women”.

18. Jonathan Djanogly (Secretary of State for Justice) in answer to a question by MP Kris Hopkins, Hansard (HC Deb, 11 July 2011, c79W)

19. Saudi Arabia Basic Industries Corp. v. Mobil Yanbu Petrochemical Co., Supreme Court of Delaware, 14 January 2005, §5a.

20. Hamzeh, A. Nizar. “Qatar: The Duality of the Legal System”, Middle Eastern Studies, Vol. 30, No.1, January 1994, pp.79-90.

21. Report of the United Nations High Commissioner for Human Rights and follow up to the World Conference on Human Rights: Effectve functioning of human Rights mechanisms, 5 August 2003

22. Amalia King, “Notes: Other Dispute Resolution: Arbitration”, Law 01: Lawmaking and the legal system, 26 February 2011.

All modern arbitration laws recognize the principle that parties are free to decide which laws are applicable to their disputes. This called “party autonomy rules”. Thus, when the 1996 Arbitration Act was passed for England, Wales and Northern Ireland it explicitly allowed binding arbitration which not carried out in accordance with the law of these countries (§4.4, §4.5), but which might be in accordance with “such considerations as are agreed by [the parties] or determined by the tribunal”. (§46.1b)

23. Abul Taher, “Revealed: UK’s first official sharia courts”, The Sunday Times, 14 September 2008.

24. “Shariah law: FAQs”, CBC News Online, 26 May 2005.

25. Marion Boyd, “Religion-based alternative dispute resolution: A challenge to multiculturalism”, 2004, p. 466.

26. Jack Straw (Secretary of State for Justice) in answer to a question by MP Grieve, Hansard, 24 November 2008.

Arbitration is not a system of dispute resolution that may be used in family cases. Therefore no draft consent orders embodying the terms of an agreement reached by the use of a Sharia council have been enforced within the meaning of the Arbitration Act 1996 in matrimonial proceedings.

27. Cliff Dilloway, “Arbitration under the Arbitration Act 1996”, 4 November 2001.

28. NA v MA: When is an Agreement Not an Agreement?

29. “You can't use sharia law in divorce deal: Muslim hospital consultant told to pay ex-wife maintenance despite claims he owes her nothing under Islamic rules”, Daily Mail, 25 July 2012.

30. Islamic Sharia Council, “On the testimony of women”.

31. “Sharia law: neither equal nor free”, One Law for All, 30 May 2012.

Arbitration and Mediation Services (Equality) Bill [HL] 2012-13

32. “Mosques’ advice: ‘don’t report abusive husbands’”, The Local, Sweden, 16 May 2012.

33. “Are Sharia councils failing vulnerable women?
”,Jane Corbin
BBC Panorama, 6 April 2013

34. Afua Hirsch, “Canon law has allowed abuse priests to escape punishment, says lawyer”, Guardian, 7 September 2010.

35. Pellegrini v. Italy, 2001-VIII, Application No: 30882/96.

36. Division of Mathematics & Statistics at the University of Glamorgan, Wales UK, “Long Term Decline: Results of the General Limited Enthusiasm Model (Births, Deaths, Reversion): Applications: Church of England” [1998?].

37. “Sharia law in UK is ‘unavoidable’”, BBC News, 7 February 2008.

38. Pope St Pius V, “Regnans in Excelsis”, Excommunicating Elizabeth I of England, 
25 February 1570.

39. WR Wilson, “The Invincible Armada”, 2011.

40. “Vatican eggs on Anglican split in US”, Guardian, 10 October 2003.

“Pope’s gambit could see 1,000 quit Church of England”, Times, 21 October 2009.

41. “How far can German churches discriminate against 2.5 million employees?” Concordat Watch.

42. The Canadian Canon Law Society: Other societies, 2011.

43. USCCB, “Advisory: Canon Law for Media Seminar”, 26 April 2010.

44. 17 February 2005


46. Meg Wallace, “What can religious organisations shield from the Privacy Act?” Online Opinion, 8 December 2011. 

Further reading

Charlotte Rachael Proudman, “Equal and Free? Evidence in support of Baroness Cox's Arbitration and Mediation Services (Equality) Bill”, May 2012.

Elaine Sciolino, “Britain Grapples With Role for Islamic Justice”, New York Times, 18 November 2008.

“Sharia Law or ‘One Law For All?’”, Civitas, 2009.

[Rabbi] Shlomo Brody, “Does Jewish Law Permit Turning In Jewish Criminals To Police? And, even if it does allow it, do haredi rabbis do it?”, Jerusalem Post, 9 July 2009.

“Church raises fears over Human Rights Act”, The Telegraph, 17 January 2009.

[Church of England] Diocesan Synod Motion, Voice of the Church in Public Life, June 2008.

Last updated 02 June 2012

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