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Mr. Andrew Dismore (Hendon): I am grateful to my hon. Friend for raising these important issues and for enabling me to explain the background to these provisions.
By way of preamble, I want to correct him on one point. He referred to the European Union convention on human rights, but the European convention on human rights has nothing to do with the European Union. That is a popular misconception, which I hope is not shared by the Conservative Front-Bench spokesman, the hon. Member for Stone (Mr. Cash). The European convention on human rights emanates from the Council of Europe, which is a different body. It is incumbent on us all to ensure that the correct constitutional position is explained in the House and to the people at large, because there is much confusion in this country about the European convention and where it comes from. The fact that some people may have certain views about the European Union does not necessarily mean that they have the same views about the Council of Europe and the convention.
My hon. Friend is right that the provision has been incorporated in the Bill to ensure that it complies with the European convention on human rights and our own human rights legislation. He may be suggesting that that is a belt-and-braces approach, and it may be seen as that, but he gave the reasons for that at the end of his contribution.
The Bill is designed to deal with the particular problem of divorce within the Jewish community, but it is appropriate to make provision in the legislation should other faiths want to raise their own concerns at a later stage. The mechanism provided by the Bill is designed to deal with the difficulties caused by husbands who refuse to give their wives a get. I am not sure whether other
religions have an exact parallel of the problem facing the Jewish community, but the mechanism would be available should that be the case.I have received letters from Catholics who are concerned about a possible impact on the Catholic faith, which does not recognise divorce. There is nothing in the Bill that creates a right of divorce—either civil or religious—where one does not already exist. There is nothing for Catholics to worry about in that context. The purpose of the Bill is not to interfere with religion. It is framed to enable civil authorities to deal with a technical problem that has arisen within the Jewish community.
My hon. Friend is right to refer to the Muslim community. I am grateful to him for bringing to the attention of the House the comments made in another place and in Committee. He has obviously done a great deal of work in researching the law and in discussions with members of the Muslim community in his constituency.
There has been no demand from members of the Muslim community for provisions similar to those in the Bill to apply to them. The answer may lie in what my hon. Friend says—that within existing arrangements for Sharia law in Britain, a way has been found round the problem, with the Muslim authorities if necessary being able to override the failure of a husband to grant a talaq divorce.
There is some doubt within some sections of the Muslim community as to whether that is a legitimate approach. There is no guarantee that the practice adopted by the Muslim authorities in Britain will continue indefinitely. However, a provision is available should the Muslim community come forward with a clear consensus that there should be implementation. I perceive no demand for that at present.
Mr. William Cash (Stone): The hon. Gentleman has mentioned the position of Roman Catholics. Has he had consultation with Church authorities, or is he merely referring to representations that have come from individuals within his constituency, or others?
Mr. Dismore: I am referring to representations from individual correspondents, not from my constituency but from one or two other places. A problem has not been perceived. I have received two or three letters.
I return to my main point, which is that there is nothing in the Bill that creates a new right of divorce or interferes with rights of religion in that connection. There is nothing to worry about. That is probably why I have not received any correspondence from Roman Catholic authorities. I know from previous experience in this place that they are not slow to come forward if they feel that their faith is likely in any way to be affected by activities in the House.
We are dealing with a provision that I hope will never have to be used. If it has to be used, that will show a change of approach from the more progressive attitude that has been adopted by the Muslim community in finding a way round the problem.
It is worth understanding why there is a problem for the Jewish community. Jewish law goes back much further than 2,000 years in this context and it cannot be changed. The situation goes back to the destruction of the temple by Titus, son of Vespasian, in 70 AD. To change Jewish law, there has to be a Sanhedrin, which is a
gathering of the rabbis, which can take place only in the temple of Jerusalem. The temple having been destroyed, there cannot be a Sanhedrin, so the fundamental tenets of Jewish law cannot be changed. That means that we must devise other ways to overcome what is perceived as a problem within the Jewish community. As far as I am aware—no doubt my hon. Friend will correct me if I am wrong—a similar problem does not apply within the Muslim faith.We need the provision so that if a problem is identified in future, we will not have to go through the rigmarole of taking new legislation through Parliament. There will already be provisions available to deal with the problem. As I have said, there is no sign that there is a problem, and there has been no demand for change.
To deal with my hon. Friend's point about the affirmative resolution procedure, let me say that there will be no prospect of change unless there is a clear consensus throughout a faith that there should be change.
The proposal that relates to Jewish divorce, which the Bill is designed to deal with, has the unanimous support of Jewish authorities. There is a clear consensus behind the Bill throughout the Jewish community. There is no argument or debate about whether it is the right thing to do. I am grateful to the Lord Chancellor's Department for its support for the Bill. I am pretty sure—no doubt my hon. Friend the Minister will make this absolutely clear—that there is no question of the clause being activated if there is no clear consensus within any other particular faith. As I have said, I am not aware of any particular demand for that at present.
The Parliamentary Secretary, Lord Chancellor's Department (Ms Rosie Winterton): I am aware that my hon. Friend the Member for Harrow, West (Mr. Thomas) has moved the amendments in the spirit of probing and certainly not that of wrecking. I know how hard he has worked in campaigning for the Bill and the changes that it will make. He has made representations to me and I know how strongly he feels about the issue.
The effect of amendment No. 2 would be to limit the scope of the Bill to Jewish religious marriages. I understand that my hon. Friend has some concerns about the compatibility of the Bill with the Human Rights Act 1998. The Government's view is that the amendment would make the Bill less likely to comply with that Act.
My hon. Friend raised the issue of Muslim women. It might be helpful if I reinforce the points made by my hon. Friend the Member for Hendon (Mr. Dismore). The position of Muslim women differs from that of Jewish women in respect of religious divorce. Where the husband has pronounced the talaq and any subsequent procedures required by law have been completed, the marriage is at an end. After the divorce, the wife is obliged to refrain from marriage for a period, which is commonly held to be four months and 10 days. Once that period is completed, there are no religious restrictions on the woman remarrying.
Perhaps I should clarify and confirm that where a Muslim woman wants a religious divorce it is open to her, as my hon. Friend the Member for Hendon said, to approach the Muslim Law Shariah Council to ask for the
marriage to be dissolved. Sonia Nurin Shah-Kazemi of the university of Westminster, in her paper entitled "Untying the Knot—Muslim Women, Divorce and the Shariah", states:
- "Unlike the legal situation of women in the Jewish community, civil law mechanisms are not necessary for Muslim women to dissolve their marriage contracts."
The Government would still be willing to consider any representations that the Muslim community may wish to make on this issue. However, we are confident that the position differs in terms of the Jewish and Muslim faiths.
The amendment would make the Bill identical in scope to a Bill that was introduced in another place by Lord Lester of Herne Hill in 2000. The Government suggested amendments to it in the light of legal advice that limiting the measure to only one religious group would risk offending against article 14—the right of freedom from discrimination—together with article 12—the right of freedom to marry—of the European convention on human rights. The Government believe that the Bill as drafted is fully compliant with the Human Rights Act 1998 and, therefore, with the convention.
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Amendment No. 4 would substitute the affirmative resolution procedure for the negative resolution procedure in the event that the Lord Chancellor makes a statutory instrument under clause 1(6) extending the provisions of the Bill to other religious groups. The Government's view is that the negative resolution procedure represents the appropriate level of parliamentary scrutiny in this case.
The Government have made it clear, and I am happy to assure the House today, that the Lord Chancellor would make such an order to extend the provisions of the Bill to other religious groups only where they requested it. The Lord Chancellor would want to be satisfied that such a request represented a consensus of the appropriate religious authorities and community leaders of any groups concerned. There is no question of the Government seeking to foist the provisions on any group that does not wish to have them.
The effect of amendment No. 1 would be to require the Lord Chancellor to make an annual report to Parliament on any representations he had received on extending the provisions of the Bill to other faith groups, and to indicate whether he intends to make such an order extending its provisions.
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