¹ The discovery of Muslim coins from the 8th Century in Britain is used to support the argument that Muslims traders first visited the (now) United Kingdom in the early centuries of Islamic expansion.Google Scholar

² The results of this, as of 31 March 2002, have not been released.Google Scholar

³ I am here referring to persons of Muslim families or those who identify themselves as Muslims.Google Scholar

⁴ These figures are routinely cited. Even at the higher end of the spectrum, this represents less than 5 per cent of the population.Google Scholar

⁵ Anwar, M, Muslims in Britain: Demographic and Socio-Economic Position, available at http://www.primarycareonline.co.uk/human effect/muslim/chaplagain.htm accessed 7 October 2001.Google Scholar

⁶ Adherents of the four major Sunni schools of jurisprudence, as well as Shia, Ismaili, Wahabi and Ahmedhi populations, among many others, are all resident in the United Kingdom.Google Scholar

⁷ For discussion of the approaches taken in European Union member states, see Potz, R (ed.), Islam and the European Union, and Ferrari, S and Bradney, A (eds.), Islam and European Legal Systems (Aldershot, Dartmouth, 2000).Google Scholar

⁸ This section draws in part upon Khaliq, U and Young, J, ‘Cultural Diversity and Human Rights in English Law’ (2001) 21 Legal Studies, 192.Google Scholar

⁹ Pearl, D and Menski, W, Muslim Family Law (Sweet and Maxwell, London, 1998), p 70.Google Scholar

¹⁰ Roy Jenkins when Home Secretary is often credited with making this policy explicit in a speech in 1966. This has been continued by subsequent administrations. Also see generally Poulter, S, Ethnicity, Law and Human Rights: The English Experience (OUP, Oxford, 1998). pp 17–29,Google Scholar who, at pp 59–65, distinguishes seven policy options: suppression; invalidity (simply not recognising validity of acts); exclusion (of minorities from the UK); laissez faire; non-discrimination; specific differential treatment; and state-funded differential treatment. For a treatment of many of these issues from a political theory perspective, see Parekh, B, Rethinking Multi Culturalism: Cultural Diversity and Political Theory (Macmillan, London, 2000).Google Scholar

¹¹ For example, the Road Traffic Act 1988, s 16(2), and the Employment Act 1989, s 11, exempting Sikhs on motor cycles or on construction sites from wearing protective headgear.Google Scholar

¹² For example, the Sunday Trading Act 1994, s 1(1), Sch 1, para 2(2)b, and Sch 2, pt II (paras 8–10), which subject the opening of Jewish-owned shops on Sundays to different regulations from other shops. See more generally Montogomery, J ‘Legislating for a Multi-Faith Society: Some Problems of Special Treatment’ in Hepple, B and Szyszczak, E (eds.), Discrimination: The Limits of Law (Mansell, London, 1992).Google Scholar

¹³ The UK government has, however, now announced its intention to consider reclassifying cannabis from a Class B to a Class C drug, although this is not due to the arguments of the Rastafarian community.Google Scholar

¹⁴ See Hansard HC 20 May 1998 col. 1020.Google Scholar

¹⁵ For a very interesting perspective on these issues, see the 14th periodic report submitted by the UK under Article 9 of the International Convention on the Elimination of all Forms of Racial Discrimination, CERD/C/299/Add.9,2 December 1996. On the general scope of Article 9, see the discussion in Evans, C., Freedom of Religion Under the European Convention on Human Rights (OUP, Oxford, 2000), reviewed at pp 405 of this issue.Google Scholar

¹⁶ Slaughter of Animals Act 1933. Prior to this provision was on a local basis and was only made for shechita.Google Scholar

¹⁷ Duffy, M, Men and Beast: An Animal Rights Handbook (London, 1981) at p 41Google Scholar cited by Poulter, S, Ethnicity, Law and Human Rights: The English Experience (OUP, Oxford, 1998), p 134.Google Scholar

¹⁸ See in particular Farm Animal Welfare Council, Report on the Welfare of Livestock When Slaughtered by Religious Methods (London, 1985).Google Scholar There is of course scientific evidence which claims it is no crueller than other methods: see for example the work cited at http://pages.british library.net/smb/halal.htm accessed 18 October 2001.

¹⁹ Malin's v Cole and Attard [1986] CLY 89.Google Scholar

²⁰ To date this is almost certainly the case as no EC legislation on the issue has made such provision.Google Scholar

²¹ See more specifically on this issue, Cumper, P, ‘Freedom of Thought, Conscience and Religion’ in Harris, D and Joseph, S (eds.), The International Covenant on Civil and Political Rights and United Kingdom Law (Clarendon Press, Oxford, 1995) p 359. Furthermore Article 26 would provide a basis for a claim under the International Covenant on Civil and Political Rights 1966.Google Scholar

²² The UK is of course also obliged to submit reports to the Human Rights Committee detailing its compliance.Google Scholar

²³ ‘Islam and the West—Bridging the Gap’ East West—http://www.mra.org.uk/fac/lead.html.Google Scholar

²⁴ For example the Charity Commissioners, as of 28 October 2001, only have 124 mosques registered as charities. This figure is vastly under-representative due to the different nomenclatures used when registering charities and not all establishments register themselves.Google Scholar

²⁵ These figures were provided by the Registrar General and are correct as of 20 December 2001. The Marriage Act 1949 has been subsequently amended on numerous occasions, most importantly by the Marriage (Registration of Buildings) Act 1990.Google Scholar

²⁶ Bradney, A, ‘The Legal Status of Islam within the United Kingdom’ in Ferrari, S and Bradney, A (eds.), Islam and European Legal Systems (Aldershot, Dartmouth, 2000), p 184.Google Scholar On this point, see also Hamilton, C, Family, Law and Religion (Sweet & Maxwell, London, 1995), p 48.Google Scholar

²⁷ The Church in Wales, among others, previously imposed a restrictive covenant that if the building was sold it could not be used for religious purposes by a non-trinitarian church. This restriction has now been removed.Google Scholar

²⁸ Although quite dated see on this point, Hodgins, H, ‘Planning Permission for Mosques—The Birmingham Experience’ Research Paper 9, Centre for the Study of Islam and Christian-Muslim Relations, University of Birmingham, 1981.Google Scholar On the Hare Krishna mandir, see Poulter, S, Ethnicity, Law and Human Rights: The English Experience (OUP, Oxford, 1998), ch. 7.Google Scholar It is worth noting that the system is generally considered to be cumbersome, expensive and overly bureaucratic.

²⁹ Town and Country Planning Act 1990, s 55(1).Google Scholar

³⁰ Ibid. s 70(2). There is no one definitive case stating what ‘material’ considerations are, although the issue has been discussed on numerous occasions: see among others, Cambridge City Council v Pearse (1993) 8 PAD 281, David Wilson Homes v South Somerset District Council [1994] JPL 721, and Cooper v Secretary of State for the Environment (1996) 71 P&CR 529.Google Scholar

³¹ The gudwaras were in Luton and Cardiff respectively and the mandirs in Southampton, Luton and Neasden. Interviews were carried out in person or by telephone in July and August 2001. I am grateful to all those who assisted in this respect. The areas covered are not fully representative or indeed comprehensive but range from those with proportionally large ethnic minority populations, such as Luton and Neasden, to those with proportionally smaller populations such as Cardiff and Southampton, to areas such as Kingston-upon-Hull where the population is proportionally very small.Google Scholar

³² For general discussion, see Bell, S and McGillivray, D, Environmental Law (Blackstone Press, London, 5th edn., 2000), pp. 293et seq. The incident is recounted in Islam and the West—Bridging the Gap, http://www.mra.org.uk.fac/aug98/lead.html.Google Scholar

³³ The Town and Country Planning Act 1990 does not allow for this, but see R v Hillingdon London Borough Council, ex parte Royco Homes Ltd [1974] QB 720, [1974] 2 All ER 643, [1974] 2 WLR 805, DC.Google ScholarSee also Rochdale Metropolitan Borough Council v Mohammed Din (1989) 4 PAD 529, which is one of the few judicial review cases in this field, involving challenge to a refusal to grant planning permission.Google Scholar

³⁴ See, for example, R v Ealing London Borough Council, ex parte Zainuddin [1994] EGCS 130.Google Scholar

³⁵ Or more accurately a public address system.Google Scholar

³⁶ Judgment of the ECHR, 2 October 2001.Google Scholar

³⁷ See discussion infra.Google Scholar

³⁸ See generally on this issue Halsbury's Laws of England, vol 5, CHARITIES (Butterworths, London, 1999.)Google Scholar Also with regard to religious charities, see Edge, P and Loughrey, J ‘Religious Charities and the Juridification of the Charity Commssion’ (2001) 21 Legal Studies, 36.Google Scholar

³⁹ There are exceptions to this, in particular, those which are registered under the Places of Worship Registration Act 1855. The consequence of registration is that the annual reports do not have to be submitted to the Charities Commissioner although the accounts are still subject to review, if the Commissioner so decides.Google Scholar

⁴⁰ This information is derived from the Charities Commissoner's database, http://www.charity-commission.gov.uk/.Google Scholar

⁴¹ See Sharif v Hamid [2000] SCLR 351.Google Scholar

⁴² See Birmingham Mosque Trust v Alavi [1992] ICR 435.Google Scholar

⁴³ R. v Imam of Bury Park Mosque, Luton, ex parte Sulaiman Ali [1992] COD 132.Google Scholar

⁴⁴ By the Local Government Act 1972, s 214, local authorities replace the burial boards under the Burial Acts 1852 to 1906.Google Scholar

⁴⁵ See, for example, the submission by Kirkless Metropolitan Council to the House of Commons Select Committee on Environment, Transport and Regional Affairs, 8th Report, 2000.Google Scholar

⁴⁶ Luton, Bradford and Leicester are notable examples.Google Scholar

⁴⁷ The Co-op, for example, in almost all areas with a substantial Muslim population now provides such a service.Google Scholar

⁴⁸ Wolfe, M, ‘Muslim Death in England and the Constraints Encountered’, a paper presented at the 3rd Conference of the Association of University Departments of Theology and Religious Studies, June 2000.Google Scholar

⁴⁹ Ibid.

⁵⁰ House of Commons Select Committee, 8th Report 2000.Google Scholar

⁵¹ Ibid.Most graves can take more than one body. The reference here, however, is to the compulsory use of one graves for bodies from different families, as opposed to use by one family.Google Scholar

⁵² Ibid. para. 14.

⁵³ See X v Germany App. No. 874/179, 24 Eur. Comm. H.R. Dec. Rep. 137 (1981).Google Scholar

⁵⁴ Re Durrington Cemetery [2001] Fam 33,[2000] 3 WLR 1322, Chichester Cons Ct (Hill Ch).Google Scholar

⁵⁵ Many early cases date from the era of empire.Google Scholar

⁵⁶ Pearl, D and Menski, WMuslim Family Law (Sweet and Maxwell, London, 1998), at p. 74.Google Scholar

⁵⁷ Not is it likely to be recognised for other purposes such as probate, for example.Google Scholar

⁵⁸ See generally the discussion in Poulter, S, Ethnicity, Law and Human Rights: The English Experience (OUP, Oxford, 1998)Google Scholar, and also Murphy, J, ‘Rationality and Cultural Pluralism in the Non-Recognition of Foreign Marriages’ (2000) 49 ICLQ 643.Google Scholar

⁵⁹ Comprehensive discussion of these issues and the approach of English law is beyond the scope of this article. See the studies by North, P and Fawcett, J, Cheshire and North's Private International Law (Butterworths, London, 1999, 13th edn.) pp 704et seq;Google ScholarMcClean, D, Morris: The Conflict of Laws (London, Sweet and Maxwell, 2000, 5th edn.) pp 237et seq;Google Scholar and Lowe, N and Douglas, G, Bromley's Family Law (Butterworths, London, 1999, 9th edn) pp 48et seq.Google Scholar The relevant provision with regard to potentially polygamous marriages outside the United Kingdom is the Private International Law (Miscellaneous Provisions) Act 1995, s 5.

⁶⁰ I.e. under the Places of Worship Registration Act 1855.Google Scholar

⁶¹ Marriage Act 1949, s 41 (amended by the Marriage Acts Amendment Act 1958, s 1(1), and the Marriage (Registration of Buildings) Act 1990, s 1(1)). As to the solemnisation of marriages in registered buildings, see the Marriage Act 1949, s44.Google Scholar

⁶² Although certain other buildings can now be registered, this would not make a difference as such marriages cannot be religious in nature: Marriage Act 1949, s 46B(4) (added by the Marriage Act 1994, s 1(2)).Google Scholar

⁶³ Contrary to widespread belief, Islam does provide women with the right to a talaq, although cultural and customary practices have in effect limited its recognition in many instances.Google Scholar

⁶⁴ With regard to the get in Jewish law, see Conway, J, ‘New Provisions for Jewish Divorces’ [1996] Family Law 368Google Scholar, and Freeman, M, ‘Is the Jewish Get Any Business of the State?’ (2001) 4 Current Legal Issues: Law and Religion (OUP, Oxford, 2001).Google ScholarThe basic position is identical in both cases. It is worth nothing that in Serif v Greece (2001) 31 EHRR 20, para. 50, the court recognised that the European Convention on Human Rights does not oblige states to give legal effect to religious weddings and decisions of religious courts.Google Scholar

⁶⁵ For a fascinating study of the work of the Muslim Sharia Council London (MSCL), see Shah-Kazemi, S, Untying the Knot, Muslim Women, Divorce and the Sharia (Nuffield Foundation, London, 2001).Google Scholar

⁶⁶ The Family Law Act 1986, s 44(1), stipulates that only courts of civil jurisdiction (i.e. usually county courts and the High Court) can grant a divorce.Google Scholar

⁶⁷ For an extensive discussion, see Pearl, D and Menski, W, Muslim Family Law (Sweet and Maxwell, London, 1998), pp 277et seq.Google Scholar

⁶⁸ The 1996 Family Law Act, s9(2), which dealt with the Jewish get, was very careful in ensuring that it did not award it legal recognition for the purposes of English law. This provision has not yet come into force, although a Bill before Parliment at the time of writing, the Divorce (Religious Marriages) Bill, if it comes into force, will essentially make provision to allow a court to require the dissolution of any religious marriage before granting a civil divorce.Google Scholar

⁶⁹ See the discussion in Murphy, J, ‘Rationality and Cultural Pluralism in the Non-Recognition of Foreign Marriages’ (2000) 49 ICLQ 643.Google Scholar

⁷⁰ Shah-Kazemi, S, Untying the Knot, Muslim Women, Divorce and the Shariah (Nuffield Foundation, London, 2001). This is analogous to the situation faced by many members of the Jewish and Catholic faiths as well, for example.Google Scholar

⁷¹ See for example the discussion by Hasan, A, ‘Islamic Family Law in the English Courts’ [1998] Family Law 100.Google Scholar

⁷² Children Act 1989, s1(1). In a case involving a dispute between a Muslim father and a nominally Christian mother the father sought to have an order prohibiting the mother from obstructing the circumcision of a child in her custody. The court held, however, that the best interests of the child would not be served by a circumcision, even though it is compulsory for Muslim males and the lineage in Islam passes through the father: Re J (a minor) [2000] 1 FLR 571.Google Scholar

⁷³ The scope of the Race Relations Act 1976 has been amended by the Race Relations Amendment Act 2000, although it is does not affect its scope for our purposes.Google Scholar

⁷⁴ On this issue and the government's reasoning, see Khaliq, U, ‘Protocol 12 to the ECHR: A Step Forward or a Step Too Far’ (2001) Public Law 457.Google Scholar

⁷⁵ Directive 2000/78, EC(OJ 2000 L 303/16), art 1.Google Scholar

⁷⁶ Directive 2000/43, EC (OJ 2000 L 180/22).Google Scholar

⁷⁷ Race Relations Act 1976, s.1(1)(a). The terms are defined in s 3(1).Google Scholar

⁷⁸ The authoritative approach, which has been widely criticised, is in Mandla v Dowell Lee [1983] 2AC 548, [1983] 1 All ER 1062, [1983] 2 WLR 620, HL.Google Scholar

⁷⁹ See for example, Nyazi v Rymans Ltd, EAT 16/88 unreported.Google Scholar

⁸⁰ See Hussain v J.H. Walker [1996] IRLR 11. Also see on this point Case 130/75 Prais v EC Council [1976] ECR 1589,[1976] 2 CMLR 708, [1977] ICR 284, ECJ.Google Scholar

⁸¹ Ahmad v Inner London Education Authority [1978] QB 36, [1978] 1 All ER 574, [1977] 3 WLR 396, CA.Google Scholar

⁸² Scarman LJ (as then was) strongly dissented, Lord Denning and Orr LJ concurred.Google Scholar

⁸³ The case was dismissed by the European Commission on the grounds that the application was manifestly ill-founded: Application 8160/78 X v United Kingdom (reported as Ahmad v United Kingdom) (1981) 4 EHRR 126.Google Scholar

⁸⁴ Yassin v Northwest Homecare Ltd. 25 January 1993, Case No. 19088/92.Google Scholar

⁸⁵ For a discussion on the hijaab and schools, see Poulter, S, ‘Muslim Headscarves in School: Contrasting Approaches in England and France’ (1997) 17 OJLS 43.Google Scholar

⁸⁶ Singh v Rowntree Mackintosh Ltd [1979] ICR 554, [1979 IRLR 199, EAT.Google Scholar

⁸⁷ Khanum v IBC Vehicles Ltd, (unreported), (1998).Google Scholar

⁸⁸ For a more general discussion, see the excellent piece by Parker-Jenkins, M, ‘Equality before the Law: An Exploration of the Pursuit of Government Funding by Muslim Schools in Britain’ (1999) 1 BY U Education and Law Journal 119.Google Scholar

⁸⁹ This is the most widely quoted figure. Estimates of 80 do exist.Google Scholar

⁹⁰ Independent schools are not defined by the Education Acts but are simply schools which meet certain regulatory standards and do not fall into any of the categories that receive any form of funding from the state. Those Muslim schools that do receive state funding now are classified as having ‘voluntary aided status’. For amendments to earlier legislation, see the Schools Standards and Framework Act 1998, s 140, Sch. 30.Google Scholar

⁹¹ I am grateful to the Department of Education for these figures.Google Scholar

⁹² This argument has been based upon the premise that schools of a similar standard and with similar facilities, established by different faith groups, have received state funding at the same time that applications from Muslim schools were denied. See, for example, the various discussion forums at http://www.muslimmedia.com and M Parker-Jenkins, ‘Equality before the Law: An Exploration of the Pursuit of Government Funding by Muslims Schools in Britain’ (1999) 1 BYU Education and Law Journal 119.Google ScholarThe notion of Islamophobia was extensively discussed and its existence first widely highlighted in Runnymede Trust, Islamophobia: A Challenge for Us All (Runnymede Trust, London, 1997).Google Scholar

⁹³ For an unsuccessful attempt by governors of the Islamia school to challenge the decision denying it funding, see R v Secretary of State for Education and Science, ex parte Islam (1992) The Times, 22 May.Google Scholar

⁹⁴ Reported cases exist where Muslim parents, for example, have successfully sought judicial review of the refusal of a non-Muslim publicly funded single-faith school to admit their child. See e.g. R v Governors of the Bishop of Challoner Roman Catholic School. ex parte C (1991) 3 Education and the Law 212.Google Scholar

⁹⁵ Modood, T et al. , Changing Ethnic Identities (Policy Studies Institute, London, 1994), Ch. 4.Google Scholar

⁹⁶ Ibid.

⁹⁷ Schools Standards and Framework Act 1998, s 69.Google Scholar

⁹⁸ Education Act 1996 s 352 (1)(a), read with the Schools Standards and Framework Act 1998, s 69, Sch 19. This does not apply to schools of a religious character, which are discussed infra.Google Scholar

⁹⁹ Schools Standards and Frameworks Act 1998, s 70, Sch 20.Google Scholar

¹⁰⁰ Ibid. Sch 20.

¹⁰¹ Previously under the Education Reform Act 1988, ss 25, 26.Google Scholar

¹⁰² To date they are all voluntary schools, i.e. they have been established privately but have been brought in to the state sector.Google Scholar

¹⁰³ Schools Standards and Frameworks Act 1998, Sch 19, para 4, and Sch 20, para 5.Google Scholar

¹⁰⁴ See the comprehensive report by Hepple, R, Cousey, M and Choudhury, T, Equality a New Framework (Hart, Oxford, 2000).Google Scholar

¹⁰⁵ See the fascinating study by Spalek, B and Wilson, D, ‘Not Just Visitors to Prisons: The Experience of Imams who work inside the Penal System’ (2001) 40 Howard Journal of Criminal Justice 3.Google Scholar