I should explain, for American readers, what a judicial review is in the UK. It is not quite the same as suing the government, though it has a similar effect. It is a procedure by which the courts in England and Wales can examine whether a public body—a minister, a local authority, a regulator—has acted unlawfully. If the judges agree that it has, they can quash the decision. Think of it as the British equivalent of challenging an executive action in the federal courts, except that our system doesn’t require you to invoke the Constitution. You simply have to show that someone in the government has gone beyond his legal authority, or exercised it irrationally. Which is precisely what the Free Speech Union believes Steve Reed, the secretary of state for communities, has done.

Reed has officially adopted a definition of “anti-Muslim hostility”—“Islamophobia” by another name—and announced that a government-appointed “special representative,” a so-called “czar,” will record complaints and ensure that anyone who falls foul of the definition is “appropriately” dealt with. The definition is to be rolled out across the police, the NHS, schools, universities, local authorities, museums, libraries, and—in Reed's own words—“public and private organizations more widely.” So everywhere, basically. Diversity officers, safeguarding leads, and HR consultants will be rubbing their hands with glee.

Now, you might think: What’s wrong with that? Nobody wants Muslims to face hatred or discrimination. But here’s the problem. Discrimination against Muslims—indeed, against people of any religion—is already illegal under Britain’s Equality Act of 2010. Stirring up religious hatred is also a criminal offense under the Public Order Act of 1986. The law, in other words, already protects Muslims from genuine discrimination and incitement. What this new definition adds is something very different: a mechanism for policing criticism of Muslims and the religion of Islam that comes nowhere near the threshold of criminality.

The definition itself is a masterpiece of legal incoherence. On one hand, it 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”—seemingly an attempt to ensure the definition isn't applied too broadly. But the accompanying guidance goes far beyond what the law prohibits and uses a thicket of vague, legally undefined terms: “prejudicial stereotyping,” “negative,” “beyond the bounds of protected free speech,” “public interest,” “reprehensible” to proscribe words, actions, and even attitudes that are deemed “anti-Muslim.”  These are subjective concepts that will inevitably be deployed to silence legitimate concerns, criticism, and debate—a Muslim blasphemy law by the back door. 

The Free Speech Union—the civil liberties organization I founded in 2020 and currently run—already has more than a dozen live cases involving members who’ve said something that Muslims found offensive. A student at Royal Holloway University was suspended after he asked an anti-Zionist activist who had called him a “wannabe Jew” why she was wearing a tea towel on her head. He has since been allowed back, but with conditions restricting who he can speak to and what he can say. How much worse will things get once this definition has been universally adopted? Anyone who dares mention female genital mutilation, forced marriages, or the overrepresentation of men of Pakistani heritage in Britain’s rape gangs—crimes that devastated the lives of thousands of working-class girls—risks being labelled guilty of anti-Muslim hostility.

To get a sense of how this definition is likely to be used, consider what happened immediately after Reed announced he’d be adopting it in the House of Commons. Iqbal Mohamed, an independent MP and pro-Gaza activist, rose to ask whether the definition could be incorporated into the Nolan Principles—the ethical framework governing public life—and applied to what he asserted was the “escalating hostility” of MPs and peers towards Muslims, with appropriate “sanctions" applied. One might have hoped Reed would point out that everything said in Parliament is protected by parliamentary privilege, one of the oldest constitutional safeguards in the English-speaking world. Instead, he said Mohamed was “right to point to the huge concern we should all share”—namely, the concern about parliamentarians being guilty of Islamophobia.

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This brings me to the second reason the Free Speech Union believes the decision is unlawful. Under British constitutional law, there is a principle known as the “occupying the field” doctrine. It holds that where Parliament has passed legislation giving a particular body responsibility for a particular area, a minister cannot simply walk in and usurp that responsibility by executive fiat. Parliament has already decided that the body responsible for protecting people from discrimination—including Muslims—is the Equality and Human Rights Commission. Creating a parallel bureaucracy, headed by a government-appointed czar with undefined powers and no statutory underpinning, does not just duplicate the EHRC's role. It cuts across it. And that, our lawyers advise, is not lawful.

The Free Speech Union is therefore bringing a judicial review against Reed’s decision. Our lawyers are preparing a pre-action protocol letter, setting out why we think this definition is unlawful and asking the government to pause both its rollout and the appointment of the czar until the case has been determined. 

Britain repealed blasphemy laws that proscribed attacks on Christianity in 2008. It would be a peculiar irony if, 18 years later, a Labour government reinstated a new version of them—not through Parliament, but through the communities secretary, an unelected czar, and a definition so vague it will undoubtedly have a chilling effect on free speech and, in particular, on the discussion and debate of important issues confronting the nation.