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.
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