Yesterday, it was reported by the Daily Telegraph that British lawyers, acting on behalf of Hamas, were threatening to bring a legal challenge under the European Convention on Human Rights (ECHR) to end the group’s proscription under terrorism legislation. They claim that the ban on supporting or assisting Hamas breaches human rights to freedom of speech, as well as the right of Hamas supporters to protest.
At first glance this seems remarkable. The military wing of Hamas was proscribed under the Terrorism Act 2000 in March 2001. The entire movement was subsequently banned by then Home Secretary, Priti Patel, in 2021. The Home Office states that Hamas is a militant Islamist movement, with an ideology associated with the Muslim Brotherhood, which aims to establish an Islamic state under sharia law in the Holy Land. In its note on why the group was banned, the Home Office says that ‘the approach of distinguishing between the various parts of Hamas is artificial. Hamas is a complex but single terrorist organisation.’
While it is true that Hamas dropped its demand for the destruction of Israel from its charter in 2017, this is sheer sophistry. Hamas rejects any alternative to the full and complete liberation of Palestine, ‘from the river to the sea.’ Useful idiots still chant this phrase about London, probably having little idea what it means. However, a month after its devastating terror attack on Israel in October 2023, then Hamas leader Ismael Haniyeh revealed the organisation’s true colours, when he said:
‘Today, the enemy has had a political, military, intelligence, security and moral defeat inflicted upon it, and we shall crown it, with the grace of God, with a crushing defeat that will expel it from our lands, our holy city of al Quds [Jerusalem], our al Aqsa mosque.’
The new challenge provokes two questions. First, why are UK lawyers representing a proscribed terror organisation which is engaged in hostage taking? (Shadow Justice Secretary, Robert Jenrick, has inevitably criticised this.) Second, does this extraordinary challenge have any prospects of success?
On the first point, it is important to note that countries which observe the rule of law do not conflate lawyers with their clients. Everyone is entitled to representation and a fair trial – from those engaged in political protest, to a sanctioned Russian oligarch or lone wolf terrorist. It does not matter if we have any sympathy with their cause – they are still entitled to due process.
Moreover, several appeals against proscription have been successful. In one case, involving the Peoples’ Mujaheddin of Iran, the claim was even supported by a former UK independent reviewer of terrorism legislation.
However, in a recent lecture on the rule of law, for Policy Exchange, the Shadow Attorney General, Lord Wolfson KC, made an acute observation. He noted that:
‘As lawyers we should champion our clients. But we don’t need to ally ourselves personally with them, and we generally should not. If we don’t want to be attacked for who our clients are or the causes or actions for which they’re being prosecuted or sued, we also shouldn’t say that those causes are our causes, or those actions are ones with which we personally identify. It’s a two way street.’
Clearly, if lawyers don’t wish to be associated with their clients, it is probably best if they do not appear to do so.
In this case, the firm which has submitted the claim is called Riverway Law. This morning, Lord Wolfson posted a comment on X noting that Riverway Law appeared to have a banner on their X page (subsequently removed) which read: ‘End Zionist Control of the UK Government.’ A request to Riverway Law as to whether this reflected the firm’s position met with no reply, but it could give some clue as to where their sympathies lie.
In terms of the law, the applicant is likely to have an uphill battle. It is inconceivable that the Home Secretary will agree to de-proscribe Hamas. If a case ends up before the courts, the Telegraph suggests that, in addition to the ECHR claims, lawyers will claim that Hamas poses no threat to UK nationals (despite the fact that several UK nationals were held hostage in Gaza) and that the ban breaches Britain’s obligations ‘not to be complicit in a genocide.’
While critics of the ECHR sometimes like to portray it as a charter for terrorists – mainly due to the past difficulties in removing terror suspects from Britain – this does not mean that the Convention is absolutist on the question of free speech. Proportionate restrictions on freedom of speech can be justified in the interests of national security, public safety, and for the prevention of disorder or crime.
Furthermore, Article 17 of the ECHR, entitled ‘prohibition of abuse of rights’, is designed to preclude individuals and groups seeking to rely on freedom of expression when they are engaged in hate speech which negates the fundamental values of the Convention itself.
This has been used in a number of cases to prevent individuals from invoking freedom of speech in circumstances where the Strasbourg Court concluded they were engaged in holocaust denial or Islamist hate speech.
There is little reason to think that the courts will not take a similar approach here. After all, in addition to war crimes, rape, murder, and hostage taking in October 2023, Hamas has also been reportedly involved in the repression of Palestinian critics in Gaza through torture and extrajudicial killings.
More generally, it is important to recognise that there is nothing legally stopping UK nationals from calling for the establishment of a Palestinian state in the Holy Land. What is illegal is supporting a terrorist group which indulges in unthinkable acts of violence against civilians and promotes an entirely undemocratic ideology, killing those who disagree with them.
Perhaps the real answer is that Hamas don’t really care whether this claim succeeds or not. In the end, it may simply be an act of propaganda designed to allow them to make political claims in the UK courts.
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