This month, Mediation Manager Laura-Pauline Adcock-Jones considers proposed legislation which would affect arbitration and mediation services within the UK.

Arbitration and Mediation (Equality) Bill: challenging assumptions

On 27 January 2017, the second reading of the Arbitration and Mediation (Equality) Bill^[1], (“the Bill”) took place in the House of Lords, with the first reading having taken place on 25 May 2016. The second reading allowed the House to debate its contents and propose any amendments. The Bill was met with enthusiasm, with 18 peers speaking in support of the Bill and no opposition raised.

Clearly a matter of personal importance for its proposer, Baroness Cox, this is not the first time that such a bill has been presented. There was one bill between 2012 to 2013 and a further bill in 2015 to 2016 which did not progress past the second reading and first reading stages respectively.  In commenting upon the past failed attempts, Baroness Cox has intimated that the Bill was thwarted by the dismissive attitude of the Government and unfortunately, this appears to still be apparent, given that Lord Keen of Elie, on behalf of the Government, commented that there were elements of the Bill which were “unnecessary because of existing legislation”.^[2]  Nevertheless, the current Bill appears to have surpassed its previous incarnations and the maxim of “third time’s a charm” will certainly resonate with Baroness Cox, notwithstanding that there are still considerable hurdles for the Bill to overcome on its journey towards accession.

In the briefing^[3] provided for the House of Lords, Baroness Cox set out that the Bill sought to address two interrelated issues:

“the suffering of women oppressed by religiously-sanctioned gender discrimination in this country; and a rapidly developing alternative quasi-legal system which undermines the fundamental principle of One Law for All. While the Bill does not specify any faith tradition, it has particular relevance for Muslim women who are adversely affected by the policies of Sharia councils”

There have been growing concerns about the treatment of women who are faced with the application of Sharia law to disputes. Such religious rulings made by councils have unfortunately resulted in the unfair treatment of women within certain communities where it is possible, upon being told thrice by the their husband “I divorce you”, to be outcast or, alternatively, they can face prejudicial decisions in respect of estate distribution or commercial disputes.

The Bill seeks to amend the following statutes:

• The Equality Act 2010
• The Arbitration Act 1996
• The Family Law Act 1996
• The Courts and Legal Services Act 1990

Interestingly, in respect of the latter, a new offence of “falsely claiming legal jurisdiction” will be created^[4]. The offence is committed if a person “falsely purports to exercise any of the powers or duties of a court or, in the case of a purported arbitration, to make legally binding rulings without any basis”. If convicted on indictment, the offender faces a hefty prison sentence of up to seven years. With such a sentence being comparable to some sexual, drug trafficking and firearms offences, the message clearly being sent to groups of concern is that continuing such practices will be dealt with strongly.

Section 29 Equality Act 2010 will specify that, in the provision of arbitration services, a person must not “do anything that constitutes discrimination, harassment or victimisation on the grounds of sex”. The proposals go on to set out that this would include:

-   treating the evidence of a man as worth more than the evidence of a woman and vice versa (to be reflected at section 6A Arbitration Act 1996 as well)

-   proceeding on the assumption that the division of an estate between male and female children on intestacy must be unequal

-   proceeding on the assumption that a women has fewer property rights than a man or vice versa.

Further amendments will include duties to advise those of the need to obtain an officially recognised marriage to “have legal protection” and that a “polygamous household may be without legal protection and unlawful”.

The goal is evidently to avoid settlements which are based upon or seek to create a disadvantage to a party at risk of discrimination by certain religious rulings or practices and, in the case of the proposed amendments to the Family Law Act 1996, section 9A will allow the Court to “issue a declaration setting aside any order based on a mediation settlement agreement or other negotiated agreement if it considers on evidence that one party’s consent was not genuine”.

In spite of the Government’s previous comments, an independent review into Sharia Law was launched last May and is expected to complete later this year. At the time, then Home Secretary (now Prime Minister) Theresa May stated that “A number of women have reportedly been victims of what appear to be discriminatory decisions taken by Sharia councils, and that is a significant concern. There is only one rule of law in our country, which provides rights and security for every citizen”.

It is to be hoped that the outcome of such a review will highlight the need for legislation in the area and that, moving forwards, the executive and legislative branches can work harmoniously in resolving the issues which have arisen; with the effect upon arbitration and mediation being the protection of the rights of those that need it and maintaining one rule of law within the defined legal system.

Accordingly, the Bill will now progress to the committee stage and will therefore be subject to more detailed scrutiny.

 

For any questions regarding LPC Law’s mediation services, please contact Laura via lpaj@lpc-law.co.uk or visit our Mediation page on our website.