Concerns have been voiced that Labour’s proposed new Islamophobia definition could have a chilling effect on free speech, with the Free Speech Union set to bring a judicial review.
The review is to be taken against Steve Reed, Britain’s Communities Secretary, and challenges the decision by Reed to impose a definition of “anti-Muslim hostility” – Islamophobia by another name.
The definition was announced on Monday as part of the British government’s social cohesion strategy, which has an aim of tackling religious hatred and extremism. Critics have hit out at a failure to include real-world examples, saying that extremists could exploit the definition.
The UK government’s non-statutory definition of Islamophobia, which is presently being finalised, focuses on anti-Muslim hatred and prejudice.
It is generally described as “unlawful discrimination,” “anti-Muslim hostility,” or “hate crimes” that disadvantages Muslims in public and economic life. Key aspects in the definition include targeting Muslim communities through derogatory stereotypes or hostility, without stifling free speech or legitimate criticism.
The proposed definition will be non-statutory and will provide the government and other relevant bodies with an understanding of unacceptable treatment and prejudice against Muslim communities.
However, the law is facing a legal challenge, with objectors such as the FSU saying it amounts to “a Muslim blasphemy law via the back door.” The organisation has said that the definition is “vague and subjective,” and will be “weaponised to silence legitimate criticism and debate about Islam, Muslims, and Islamic practices and history.”
The working group’s proposed definition must be compatible with the unchanging right of British citizens to exercise freedom of speech and expression – which includes the right to criticise, express dislike of, or insult religions and/or the beliefs and practices of adherents.
‘ORGANS OF SELF-CENSORSHIP’
Ministers say that they will provide examples but that they need to be tested first.
Jonathan Hall KC, the independent reviewer of terrorism legislation, told The Times newspaper that the definition risked creating confusion and self-censorship because ministers have failed to provide clear examples of what behaviour would fall within its scope.
He said: “The government has positively encouraged all organisations, public and private, to adopt it. But do local authorities, libraries, universities, charities, museums have the strength and inclination to resist becoming organs of self-censorship?
“It will be hard for local organisations, short-staffed and possibly under pressure from activists and entryists, to keep their focus on intentional hatred which is or ought to be the essence of the definition.”
The group, whose General Secretary is the Conservative life peer, Toby Young, says it believes there are two grounds on which the decision is unlawful.
Lord Young of Acton said last week: “This is the most serious threat to free speech the Government has come up with so far – the only area in which it’s achieving any success.”
He claimed that “if we don’t win this fight, tens of thousands of people a year could lose their jobs at the say-so of a Labour-appointed ‘tsar.’ It’s dystopian.”
Lord Young said that public bodies will adopt the definition, despite it being non-statutory, “with the same zeal the police have shown in investigating and recording non-crime hate incidents.”
“It is predicted by one of the drafters of the definition that it could lead to around 20,000 reports of ‘anti-Muslim hostility’ a year. At present, the number of recorded anti-Muslim hate crimes is around 4,000.
“In a free society, no religion should be shielded from legitimate criticism. This proposal places one faith above the rest.”
In a statement, the FSU said: “First, the definition itself hasn’t been properly thought through and is full of serious and dangerous contradictions. The definition says that to be guilty of anti-Muslim hostility a person must be involved in “engaging in, assisting or encouraging criminal acts”, or “unlawful discrimination”.
“This is an attempt to ensure it isn’t applied too broadly, which by itself would be welcome. But the Guidance then goes on to contradict the limitations in the definition, going far beyond what is prohibited by law and using nebulous, legally undefined terms like “prejudicial stereotyping”, “negative”, “beyond the bounds of protected free speech”, “public interest” and “reprehensible”.
“Those are all vague and subjective concepts that will inevitably be weaponised to silence legitimate criticism of the Islamic faith and Muslims. What authority will the new ‘anti-Muslim hostility’ ‘Tsar’ — whom the Government has said it intends to appoint — have to find people guilty of this ‘crime’, given that the definition isn’t going to be put in statute? The result is that the definition on its own terms is incoherent and irrational, which leaves the door wide open for criticism of the Islamic faith to be labelled as “hostility”, and therefore censured. Baroness Gohir, a Labour peer and leading candidate to become the new Tsar, has already said that 20,000 incidents of ‘anti-Muslim hostility’ occur every year.
‘THE APPOINTMENT OF AN OFFICIAL TSAR’
“Second, the adoption of this definition (not to mention the appointment of an official ‘Tsar’) is a breach of the ‘occupying the field’ doctrine in public law. According to this constitutional principle, the Government’s non-statutory power is not available insofar as its exercise would cut across legislation enacted by Parliament. This is important,” the FSU said.
“Where Parliament has enacted legislation which ‘occupies a field’, it is not constitutionally lawful for a Minister like Steve Reed to waltz in and attempt to usurp or otherwise override Parliament’s will. In this case, the body that Parliament has made responsible for protecting Muslims (and others) from discrimination is the Equality and Human Rights Commission (EHRC), not the Communities Secretary.
“To create overlapping areas of responsibility between the EHRC and the new ‘anti-Muslim hostility’ Tsar is to sow confusion which will inevitably lead to conflict, division and censorship. It is not lawful for the Government to unconstitutionally override the EHRC just because the EHRC will not bend to the Government’s political will. Parliament is sovereign in the UK, and Steve Reed and the Labour Government are not.”
The organisation said that its lawyers are preparing a Pre-Action Protocol letter that will be sent to Steve Reed later this week. It says it will call on the Government to postpone the roll out of the definition — and the appointment of the ‘Tsar’ — until the case has been determined.
“Bringing a judicial review against a Secretary of State is not cheap, but we believe this is a vitally important free speech issue. Blasphemy crimes were repealed as far back as 2008 — let’s keep it that way,” it said.
Ministers have insisted that the definition will not affect free speech — a commitment to that is included in the definition.
Former attorney general Dominic Grieve, who chaired the working group, said that he believed the definition would restrict those who wanted to suppress freedom of speech.
He told The Times: “Lots of organisations have currently definitions of Islamophobia, anti-Muslim hatred, some of which I might add would be quite seriously flawed because they are being used in ways which I would argue to close down freedom of expression.”
He said that if the definition is properly applied, it would “prevent some of the rather egregious examples of academics being no-platformed or suspended by their academic community because somebody’s made a complaint, because someone will realise immediately that it doesn’t fit within this framework”.