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It is often the case that when proscribing movements as terrorist, or seeking exclusion orders on individuals, the Home Office defines its actions in a way which leaves itself wide open to legal challenge.

Thus it is with the Home Office’s explanatory memorandum that accompanies an amendment to the Terrorism Act 2000, which proscribes Hamas in its entirety in the UK. The memorandum provides only three reasons for the proscription, both political and military, in the UK.

The memo says that Hamas participated in terrorism by firing more than 4,000 rockets at Israel indiscriminately in May this year, killing civilians, including two children. It says that the use of incendiary balloons was a terrorist act that caused fires in communities in southern Israel, and that Hamas prepared youths in Gaza for terrorism by running training camps.

Even if you accept these assertions at face value (and admittedly this is hard: Israel’s bombardment of Gaza in May killed 256 Palestinians, including 66 children, and the Israeli school curriculum does not refer to their neighbours as Palestinians, but only as Arabs, who are depicted as refugees, primitive farmers and terrorists), none of the claims in the document refer to any activity in the UK.

It is significant that this is a Home Office document, not a Foreign Office one – and yet, the reasons for banning Hamas as a political movement occur outside the UK and in Palestine itself. There is no mention of antisemitism, or any activity by Hamas or its supporters in the UK that would justify such a ban.

In response to MEE questions, the Home Office stated that “following a new assessment the Home Secretary has concluded it [Hamas] should be proscribed in its entirety. This action will support efforts to protect the British public and the international community in the global fight against terrorism. Hamas is already listed in its entirety by the United States and European Union.”

The Home Office went on to explain that Hamas’s military wing was proscribed in March 2001 because “it was the government’s assessment that there was a distinction between the political and military wings of the group. This distinction is now assessed to be artificial, with Hamas as an organisation involved in committing, participating, preparing for, and encouraging acts of terrorism.

“Hamas commits, participates, prepares for and promotes and encourages terrorism. If we tolerate extremism, it will erode the rock of security,” said Home Secretary Priti Patel in a keynote speech last week at the Heritage Foundation. “Hamas has significant terrorist capability, including access to extensive and sophisticated weaponry as well as terrorist training facilities, and it has long been involved in significant terrorist violence.”

Illegal occupier

The explanatory note, however, acknowledges, albeit in brackets, changes to the 1988 Hamas charter, by which Hamas recognises de facto the 1967 borders of Israel and no longer demands the destruction of Israel in its covenant. This recognition would allow lawyers to argue in UK courts that Hamas has a legitimate right to self-defence against an illegal occupier of historic Palestinian lands.

By being so patently partisan in its description of the events that took place this past May, and by omitting the civilian bloodshed caused by Israeli forces – including the frequent storming of al-Aqsa Mosque in Jerusalem, attacks by armed vigilante mobs of settlers on Palestinian civilians in Israel’s mixed cities, and targeted attacks on dozens of buildings in Gaza, which destroyed more than 460 housing and commercial units – the Home Office’s explanatory note destroys its own case.

Indeed, it is remarkable how little support the Home secretary has had from the Foreign Office itself.

Peter Ricketts, former diplomat and chair of the Joint Intelligence Committee under former Prime Minister Tony Blair, told the BBC’s World at One on Friday that this proscription of Hamas’s political wing will not change the UK’s foreign policy, and that Hamas has to be part of a political solution to the Israel-Palestine conflict. What he left unsaid is that from Wednesday, the search for a political solution will be much more complicated because of this ban.

This was stated loud and clear by other Palestinian factions, not least Fatah, which does recognise Israel. The same warning was given by MPs in Jordan.

The Palestinian Authority’s foreign ministry condemned the designation of Hamas as a terrorist organisation as “an unjustified attack on the Palestinian people, who are subjected to the most heinous forms of occupation, and historical injustice established by the Balfour Declaration”. The PA added that the designation will impede peace and ongoing efforts to consolidate the truce and rebuild Gaza.

Status bolstered

At the risk of stating the obvious, the PA has no love for Hamas, a rival Palestinian faction that has considerably more legitimacy and popularity in the occupied West Bank than Palestinian President Mahmoud Abbas does. Rather, it is obliged to make a statement like this, knowing all too well how popular Hamas is.

That is also the assessment of Israel’s domestic security service, Shin Bet. In the run-up to planned elections this year – which ended up being postponed, or in truth cancelled, by Abbas – they threatened Hamas political activists with years-long detention if they ran in the elections. These were not empty threats: dozens of Hamas cadres and leaders, along with members of the Palestinian Legislative Council, students and union activists, were arrested this past February.

The elections were cancelled by Abbas on the pretext of Palestinians not being allowed by Israel to cast their vote in Jerusalem. But had the polls gone ahead, Abbas’s list would have been decimated, as Fatah would have been divided into two or three competing factions, headed by the imprisoned Marwan Barghouti and the exiled Mohammed Dahlan.

Hamas itself was not expecting to do as well in 2021 as it did in 2006, when it emerged as the majority faction in the occupied West Bank and Gaza. Indeed, there was vigorous debate within the movement as to the wisdom of running in an election, the odds of which were stacked against Hamas. The leadership rightly calculated that Abbas would blink first, and in this calculation, they were proved right.

In any case, their status was immeasurably bolstered among Palestinians by the decision of the military wing to fire a volley of missiles over Jerusalem, the act that ignited the May war. As Fatah froze in the face of daily incursions by Israeli police at al-Aqsa complex, Hamas was seen – in the eyes of Jerusalemites and Palestinians in Israel and the West Bank – to be doing something about resisting the occupation.

This is something that neither Israel, nor Patel, nor the pro-Israel lobby in the UK appear to understand.

Wide political reach

Hamas is supported by many Palestinians who do not necessarily favour armed resistance, rockets or suicide bombs. They are supported by many Christian Palestinian families in Bethlehem.

Why? Because Hamas is not seen as corrupt, as Fatah and the PA have become; it has not recognised Israel; it does not open the doors of the West Bank every night to Israeli forces; and it resists the occupation. This is the view of many Palestinians who are secular, or if they are religious, do not identify as Islamist. It is also the view of many Palestinians with Israeli citizenship who live in the Israel of 1948.

Of course many don’t, and there is an Islamist party that supports the Israeli government. But the fact is that Hamas’s political reach spreads far beyond Gaza itself. Whether Patel and the Home Office like it or not, this is the reality in the occupied West Bank.

This broader support worries Israeli military intelligence. Israel thinks it can deal with Hamas per se as a militant organisation; as such, peaceful or non-violent resistance is a cause for concern. This is why great efforts are made by Israel’s elite signals intelligence squad, Unit 8200, and Shin Bet to intercept conversations in an attempt to find levers they can use to get informers – details of marital infidelity, debts, homosexuality – anything that can be used to tear Palestinian society apart.

To these Palestinians, Patel and the UK are sending a message: You can have democracy, just as long as you vote for the right party, and just as long as the party you vote for accepts the right of Israeli troops to raid and terrorise your homes and families every night.

The message is also that any other option of resisting the occupation is off the table. Choose non-violence, such as boycott, divestment and sanctions (BDS), and you will be labelled antisemitic. Whatever it does, Israel cannot be sanctioned. Whatever it does, Israel cannot be prosecuted by the International Criminal Court for war crimes, whose current investigation has been condemned by the US and UK.

Deepening the conflict

So what exactly can you do, if you are a Palestinian living under Israeli occupation in the West Bank, East Jerusalem or Gaza? To the Palestinian diaspora, particularly in the UK, this move sends an even more damaging message.

Exactly as was predicted when antisemitism was broadened through a “working definition”, which includes examples such as holding Jews collectively responsible for the actions of the state of Israel, the ability of anyone in Britain to support the Palestinian cause is being diminished.

Attempt to mount an exhibition, and you will be ever harder put to find a venue. Stage a meeting in a university, and you will be monitored by Prevent. You could be targeted on social media as an antisemite and lose your job. Now, you could also be branded as a supporter of a proscribed organisation and jailed for 14 years, or lose your citizenship without any recourse to a court.

None of this will solve the conflict. It will only deepen it. Patel has done something that even Blair would not do, for all his hatred of political Islam.

Blair, who had engaged in seven rounds of negotiations with Khaled Meshaal, then the political director of Hamas in Doha, in 2015, said two years later that he regretted that the UK and other western countries had excluded Hamas from the negotiating table and supported Israel’s blockade of Gaza – and he acknowledged the UK had maintained an informal dialogue with the group.

This approach solves conflicts, and it is the one Blair and his predecessor, John Major, both used in reaching peace in Northern Ireland. They talked to the IRA, and they did it directly.

Former Prime Minister Margaret Thatcher – so admired by Patel – is discredited on this issue. Thatcher famously said at a Commonwealth summit in Vancouver in 1987: “A considerable number of the ANC leaders are communists … When the ANC says that they will target British companies, this shows what a typical terrorist organisation it is. I fought terrorism all my life … I will have nothing to do with any organisation that practises violence. I have never seen anyone from ANC or the PLO [Palestine Liberation Organization] or the IRA and would not do so.” And look at what happened to the ANC in South Africa, or indeed Sinn Fein on both sides of the border today.

Patel’s ban, a move resisted by Blair at the height of the Second Intifada, has done immeasurable damage to the search for peace in Palestine.

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David Hearst is co-founder and editor-in-chief of Middle East Eye. He is a commentator and speaker on the region and analyst on Saudi Arabia. He was The Guardian’s foreign leader writer, and was correspondent in Russia, Europe, and Belfast. He joined the Guardian from The Scotsman, where he was education correspondent.