In a March 2000 parliamentary debate on the Terrorism Bill, Home Office minister Lord Bassam recognised that proscription is a very heavy-handed power that required ‘an important safeguard to be in place against its misuse by the Secretary of State’.
That protection against executive abuse came in the form of section 4 of the Terrorism Act by which, for the first time, a proscribed group, or any person affected by the proscription, could make an application to the Home Secretary for deproscription. Four days before the Act came into force, justice minister Lord Bach described the process as ‘an effective remedy’ for those impacted.
It was, therefore, of great concern last month to hear shadow lord chancellor and justice secretary Robert Jenrick (pictured below) describe our making of such an application under section 4 as ‘sickening’.
In the following days, Jenrick proceeded to further undermine the rule of law by informing the press that he had written to the Solicitors Regulation Authority to investigate Riverway Law, as there were significant questions as to whether we had complied with our obligations under the UK sanctions regime.
Jenrick provides no basis for his allegations. From the outset, we took advice from the Office of Financial Sanctions Implementation, commissioned a specialist opinion from external counsel, and sought the assistance of other lawyers who represented sanctioned organisations to ensure we did not breach our duties under the sanctions regime.
All advised that, in order to accept payment from a sanctioned organisation, a licence was needed from the Treasury. The process of obtaining a licence is lengthy and cumbersome, and in light of the urgency necessitated by what many have described as a genocide, it was agreed to work pro bono. Neither our firm nor the instructed barristers, nor any of the 20 expert witnesses who gave evidence in support of the application, received any payment for their services or expenses from Hamas or any third party.
In his original comment on the story, Jenrick was unable to refrain from expressing disdain for immigration lawyers and is well-known for his unstinting support for Israel. Is it wise for those supporting a state that has been declared by the International Court of Justice to operate an apartheid regime, to be in unlawful occupation of the Occupied Palestinian territories, that is currently before the ICJ on charges of genocide and that is led by an indicted war criminal, to try to take the moral high ground?
For the avoidance of doubt, if Jenrick were to re-enter legal practice and defend Israel and Netanyahu in such proceedings, we would respect the convention that he should not be identified with his clients as a result of discharging his functions.
Jenrick has suggested that by both bringing this application, and doing so publicly, we have brought the reputation of the profession into disrepute. On the contrary, the feedback that we have received from people both within the UK and overseas, suggests that for many, we have gone some way to restoring that reputation given the perception that the profession chose not to condemn Israeli war crimes or remained indifferent to the ICJ rulings. This application is not just about the right to resist and freedom of speech, but is rooted in the principle that dialogue and mediation are essential in resolving disputes (as happened in the north of Ireland and South Africa).
Palestinians are being killed by Israel’s war on an unprecedented scale. For many, the British government is complicit in such atrocities through the provision of military support and political cover. It is amid this devastation that the full catastrophic implications of the proscription of Hamas - as opposed to just its military wing - are being realised.
Hamas, the de facto civil administration of Gaza, runs public services: the bureaucracy, the schools, the hospitals, the firefighters, the civilian police, even the garbage collectors. Proscription effectively criminalises all of those individuals, as well as any British citizen who meets or enters into dealings with them.
This has had lethal consequences, not just for the ability of humanitarian relief agencies to distribute aid, but also for healthcare workers, journalists and UN workers, all of whom have been systematically targeted by Israel on the basis that they are ‘Hamas’. The proscription nullifies the British government’s ability to exercise any influence over a key protagonist in the region and reduces the prospects of reaching a just and lasting peace.
In May 2006, the then independent reviewer of terrorism legislation Lord Carlile expressed ‘some concern that the UK government occasionally is inflexible in its attitude to changing situations around the world, with reference to proscription’. The home secretary has the opportunity to ensure that the arguable misuse of proscription powers by one of her predecessors is no longer an indirect cause of further death and destruction. It is undoubtedly a difficult decision that requires courage - but courage is what brought peace to Ireland.
In 2017, Tony Blair, credited with securing that peace, expressed his personal regret over the international boycott of Hamas following its electoral success in 2006. It now lies with the home secretary to decide whether she will have similar courage today or feel guilt-ridden in years to come. Whatever her decision, Jenrick and his like should cease endangering the lives of the lawyers who seek to give life to the concept of the rule of law.
Fahad Ansari is director and principal solicitor of Riverway Law, London
