In February 2025 the UK’s Deputy Prime Minister Angela Rayner announced the convening of a working group chaired by Rt Hon Dominic Grieve KC to provide a definition of Islamophobia. She insisted that the definition would be non-statutory and align with the UK’s values of free expression, including the right to criticise a religion. Nevertheless, this action raises several concerns.
While it can initially appear to be a useful tool for defining acts of religious hatred and incitement, in reality phobia terminology tends to hinder rather than assist efforts to address religion-related violations.
It is imprecise, and is invariably used to shut down legitimate debate. Additionally, discussion about whether or not a given phobia is indeed occurring can often eclipse efforts to highlight and address the actual violations.
A by-product of the use of such terminology is that the determination of whether or not the phenomenon or phobia is/was at work in a given circumstance tends to be grounded on ‘feelings’, rather than on the definitive foundation of international law, particularly Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR). Feelings are subjective, and can vary from one individual to another. Thus, allegations are difficult to assess objectively, and a lack of legal consistency could follow any implementation.
Phobia language potentially undermines the universality of freedom of religion or belief
Former Special Rapporteur on freedom of religion or belief (FoRB) Heiner Bielefeldt provided perhaps the most cogent argument against prioritising phobia language by pointing out it potentially undermines FpRB as a universal right, as UN resolutions highlighting terminology such as Christianophobia, Islamophobia, and antisemitism ‘frequently reveal a lack of universalism in spirit and letter.’1 Instead of peculiarising specific religions or beliefs, the focus should be on strengthening the status and legal standing of FoRB as a universal right, and addressing violations robustly whenever they occur.
Similar sentiments were echoed in the Foreign, Commonwealth & Development Office (FCDO) FoRB toolkit (2016), which stated that ‘phobia language, including “Islamophobia” and “Christianophobia”… emphasises “feelings” rather than “actions”, whether or not a human right has actually been violated. Human rights allows restrictions on inciting hatred against religious (or non-religious) believers, but it also requires a proper balance to be struck to safeguard freedom of expression. It is therefore important to ensure that freedom of religion or belief itself, not feelings about it, remains the primary focus of concern.’2
Efforts to penalise defamation of religions and the risk to freedom of expression
Since 2007 the Observatory of the Organisation for Islamic Cooperation (OIC) has produced annual reports on Islamophobia, which it defined as ‘a combination of hate, fear and prejudice against Islam, against Muslims, as well as against anything associated with Islam, such as Mosques, Islamic Centres, Holy Quran, etc.’.
OIC Member States also led the charge in tabling a series of resolutions on defamation of religion at the UN between 1999 and 2010, the provisions of which negatively impact freedom of expression, protect religion rather than individuals, and tend to conflate race with religion. Additionally, almost all of these states have active blasphemy legislation, which can inhibit free speech, and which are often utilised to suppress minority and dissenting voices. Blasphemy legislation can also be a dangerous driver of religious extremism and entrench impunity, which in turn undermines the rule of law.
In 2011 the UN Human Rights Council (HRC) addressed the contention regarding free expression and religious defamation by adopting Resolution 16/18, which addressed ‘combatting intolerance, negative stereotyping and stigmatisation of, and discrimination, incitement to violence and violence against persons based in religion or belief’, and which passed by consensus.3 The Rabat Plan of Action,4 which was formulated by the Office of the High Commissioner for Human Rights (OHCHR) in 2012, built on both Resolution 16/18 and Article 20 (2) of the ICCPR by providing a framework for balancing freedom of expression and incitement to religious hatred in domestic law.
The Rabat Plan of Action advocates criminalising only the most severe ‘hate speech’ which risks inciting imminent hostility, discrimination or violence. It proposes a six-part test to determine when speech has reached the threshold of criminal incitement: examining the social and political context; the speaker (e.g. their status and influence); the intent of the speech; the content or form of the speech; the extent of the speech; and the likelihood and imminence of causing actual harm. The Plan of Action recommends the repeal of blasphemy laws, as they protect religions rather than individuals. It also emphasises positive measures states can take to promote inclusion, diversity and pluralism, including ‘promot[ing] and provid[ding] teacher training on human rights, and strengthen[ing] intercultural understanding as part of the school curriculum for pupils of all ages.’
Significantly, the Rabat Plan of Action warns against formulating legislation that is worded too broadly or vaguely. Rather than being of assistance in preventing incitement, such laws can open the door to the suppression of legitimate expression, and are weaponised for that very purpose.
Who draws the line?
Criticism of religion is permitted in the UK. However, if determining when criticism exceeds its boundary and becomes a violation is feelings-based, would it still be possible to identify an infringement definitively? For example, would robust discussion of central tenets of the faith be deemed Islamophobic, or would the threshold be crossed with the burning of holy texts? Given that thresholds of what is offensive can vary from person to person, such a determination may come down to the sentiments of observers, which could result in differing applications of the law on different occasions.
Despite the deputy prime minister’s assurances of a non-statutory approach, there inevitably will be consequences in workplaces and educational establishments for those accused of Islamophobic speech or acts, even if they are eventually acquitted. There are concerns that an allegation, or even the fear of being accused of Islamophobia would immediately shut down debate, for example, in universities. This has already occurred in the wake of the UK’s adoption in 2016 of the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism,5 which is also not legally binding, but which is widely used as official guidance by the police, educational establishments and government agencies.
Lessons from the implementation of the IHRA working definition of antisemitism
The IHRA working definition states that ‘rhetorical and physical manifestations of antisemitism … could also target the state of Israel, conceived as a Jewish collectivity.’ Even though it goes on to state that ‘criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic,’ in practice the definition has caused uncertainty regarding where the boundary between robust and legitimate criticism of the actions of the Israeli government and the commission of antisemitism actually lies, leading to the application of more restrictive interpretations.
In her October 2022 report,6 the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance reiterated ‘the urgent need for [UN] Member States to remain committed to fighting antisemitism in all its manifestations’, but also drew attention to ‘the politically motivated instrumentalization of the fight against antisemitism, which is increasingly linked to the adoption, promotion and implementation by States’ of the IHRA working definition. She concluded by recommending that states ‘suspend the adoption and promotion of the International Holocaust Remembrance Alliance working definition of antisemitism.’
The government must ensure UK legislation protects both FoRB and freedom of expression
In the UK, the Racial and Religious Hatred Act 2006 already maintains a high threshold for protecting freedom of expression and aligns with the principles of Resolution 16/18. Under the Act, words or behaviour must be threatening and intended to stir up religious hatred to be deemed criminal offences. Section 29J of the Act stresses that ‘offences of stirring up religious hatred are not intended to limit or restrict discussion, criticism or expressions of antipathy, dislike, ridicule or insult or abuse of particular religions or belief systems.’7
The government’s efforts to define Islamophobia raise serious concerns regarding legal proportionality, such as the disproportionate restrictions on freedom of expression. Should it fail to meet the required legal thresholds in international law, the definition will undermine both FoRB and the broader principle of universal human rights protection.
Instead of combatting religious hatred and incitement by producing definitions that may be open to being weaponised to restrict freedom of expression unduly, the government’s focus should be on reviewing existing legislation on incitement to religious hatred, hate crimes and hate speech to confirm they align sufficiently with international norms, and in particular, incorporating the Rabat Plan of Action threshold test in order to ensure both FoRB and freedom of expression are adequately protected, and that any conflicts arising between these rights can be resolved in a manner commensurate with international standards.
By CSW’s CEO Scot Bower
Featured Image: ‘Shah Jahan Mosque’ by Roger W Haworth is licensed under CC BY-SA 3.0.
Footnotes:
- Report of the Special Rapporteur on freedom of religion or belief, 23 December 2015 https://digitallibrary.un.org/record/819268?v=pdf
- ‘Freedom of Religion or Belief: How the FCO can help promote and protect this human right’, 2016 https://assets.publishing.service.gov.uk/media/5a8027a6ed915d74e33f8c4f/Freedom_of_Religion_or_Belief_Toolkit_-_2016.pdf
- Resolution 16/18 https://documents.un.org/doc/resolution/gen/g11/127/27/pdf/g1112727.pdf
- The Rabat Plan of Action, OHCHR, 2012 https://www.ohchr.org/en/documents/outcome-documents/rabat-plan-action
- ‘Freedom of Speech and Academic Freedom in UK Higher Education: The Adverse Impact of the IHRA Definition of Antisemitism,’ European Legal Support Centre & British Society for Middle Eastern Studies, September 2023 https://www.brismes.ac.uk/files/documents/Freedom%20of%20Speech%20and%20Academic%20Freedom%20in%20UK%20Higher%20Education-BRISMES-ELSC.pdf
- ‘Combating glorification of Nazism, neo-Nazism and other practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance’, October 2022, https://www.ohchr.org/en/documents/thematic-reports/a77512-combating-glorification-nazism-neo-nazism-and-other-practices
- Racial and Religious Hatred Act 2006 – Explanatory Notes’, https://www.legislation.gov.uk/ukpga/2006/1/notes/division/5/2