Free Speech Union bringing a judicial review against Communities Secretary

"Islamophobia" by another name.

The Free Speech Union is bringing a judicial review against Steve Reed, the Communities Secretary, challenging his decision to unlawfully impose a definition of ‘anti-Muslim hostility’ – ‘Islamophobia’ by another name – and we need your help. Judicial reviews are expensive, so anything you can donate to our crowdfunder would be hugely appreciated. Just click here to donate. And in case you’re wondering, our new donation platform is completely secure.

We think there are at least two grounds on which the decision is unlawful.

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.

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. 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.

Our lawyers are preparing a Pre-Action Protocol letter that will be sent to Steve Reed later this week, and they’re going to ask that the Government postpones 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. So please do give what you can by clicking here.

With kind regards,

Lord Young of Acton
General Secretary
The Free Speech Union

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