2005.07.07, Four Years On
Reader Comments (2)


steven.g.jones@btinternet.com

I always get concerned over any parallel court systems, even when run under the aegis of the Arbitration Act. Beth Din courts have operated in the UK for century, and I don't suppose anybody outside the Jewish community has much noticed. The fairness or otherwise of such systems are presumably governed by the community that uses them (or, rather, the more powerful forces within those communities).

The Arbitration act itself is (fairly) contemporary, and I've not gone through it in detail, but I rather suspect that it will rely on both parties who subscribe to this process being fully informed of their legal rights. Of course the obvious concern is that those from conservative cultural and religious origins are very likely not to be so informed. The process could then be very unequal indeed.

I assume that binding decision made by arbitration are constrained. For instance, divorce or child custody orders are surely not legally enforceable when made by these bodies and do require the involvement of the appropriate civil courts (and hopefully not just "nodded through". Of course "legally enforceable" is hardly the issue - many of these parallel "courts" can effectively enforce their decisions through cultural, economic and social forces (or worse). The real problem is empowering (a word I hate, but it will have to do) those who are at a disadvantage. Even providing more legal rights to people in these positions is not going to have any benefit if there is no realistic prospect of them being aware or able to use them.

I'm not a great lover of regulation, but it does seem to me that a very thorough review needs to be done of such para-legal systems, and that the limits and constraints have to be clearly laid down and their operation within UK law. Further, that there must be some protection for the weaker parties in such binding arbitration schemes. The subservience of such schemes to national law has to be explicitly spelt out along with the limit of what can or cannot be decided upon and what must be determined in the relevant civil courts. Presumably some form of licensing system with penalties for those operating outside of this.

There are going to be many grey areas here. For instance, these parallel legal systems can be used for arbitration of disputes between business men and women which may, or may not, have a religious or cultural aspect. There is also the problem of defining the difference between a mediation and a binding arbitration system. Clearly the former will lack any ability for legal enforcement, but that will hardly matter if there is de-facto power to do so.

A mess - but then maybe a consequence of what might be considered to be a ghettoisation of society (as distinct to a culturally diverse one).




Barnabas Palfrey

http://n/A

I weighed in largely in support of what seemed to me to be very mild suggestions by the A of C the other year, and against the hysterical over-reaction that ensued. But I admit it is quite possible that religious court arbitration could never work fairly or properly within British law, whereas RW seemed to prejudge this.

What has surprised me is to learn that these courts exist already, and not just as recognised modes of out-of-court mediation, but as somehow as courts of arbitration in themselves. It is sadly typical that British government proceeds by a kind of creep that no-one notices. So I don't see that either the bishop or the Chief Justice did anyone a disservice by pointing the issue out, even if one were to disagree with their conclusions. Not talking about things is generally how we do inter-ethnic relations in this country, and it doesn't help very much.

These courts are going to exist and attempt to function whether the British legal system recognises them or not, of course. This leaves two responsible options: either one actively tries to marginalise them and extinguish their influence – treating them rather as one treats someone who impersonates a police officer, or at least as a threat to the rule of law - or one tries to find ways to co-opt and hence mold them.

I'd like to hear some from other organisations than Civitas, which is fairly ideologically predictable. Either way, we're not talking about this enough, so thanks, M.




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