The equality act places an equality duty on the public sector. The Secretary of State is charged with the task of designating certain organisations as proscribed under the terrorism act.

Does taking political sides or holding double standards with respect to an ethnic conflict in exercising this discretion fall foul of this duty?


2 Answers 2


See R (on the application of Marouf) v Secretary of State for the Home Department [2023] UKSC 23.

The public sector equality duty does not have extraterritorial scope. The duty has the purpose of bringing about societal change within the the UK community (para. 54). But:

  1. ... There is no general duty under section 149 on public bodies to attempt to bring about that kind of change in countries outside the United Kingdom and it is not open to a person with a protected characteristic but no connection to the United Kingdom to challenge a decision of a public body on the grounds that a policy adopted failed to have due regard to the need to improve their position within that overseas community.

  2. It is no doubt the case that where decisions and policies are being discussed within a Government department, consideration will be given to whether the effects on people overseas are likely to be advantageous or disadvantageous from the point of view of the UK’s overall interests. The wisdom of having such an internal discussion as part of policy making certainly does not mean that the PSED should apply.


The public sector equality duty (PSED) at section 149 Equality Act 2010 has nothing to do with overseas terror groups.

Aside from the lack of extraterritorial scope, none of the protected characteristics at 149(7) or clauses in the rest of that legislation relate to acts including:

  • launching indiscriminate rocket, mortar and incendiary attacks against civilians
  • hostage-taking of civilians (including children)
  • brutal murders of civilians (including children)
  • training people (including children) to carry out the above acts
  • or encouraging the murders of all Jews all around the world.

Under Part II Terrorism Act 2000, the Home Secretary may proscribe an organisation if they believe the organisation is concerned in terrorism, and it is proportionate to do. For the purposes of the act, this means that the organisation:

  • commits or participates in acts of terrorism
  • prepares for terrorism
  • promotes or encourages terrorism (including the unlawful glorification of terrorism)
  • is otherwise concerned in terrorism

To say the least, Hamas seems to match the description.

The Secretary of State has regard to several factors in deciding, as a matter of discretion, whether or not to proscribe an organisation. These are:

  • the nature and scale of the organisation's activities;
  • the specific threat that it poses to the UK;
  • the specific threat that it poses to British nationals overseas;
  • the extent of the organisation's presence in the UK; and
  • the need to support international partners in the fight against terrorism

The reasons for proscription of Hamas at the time are in the Explanatory Notes for The Terrorism Act 2000 (Proscribed Organisations) (Amendment) (No. 3) Order 2021. The examples in the Explanatory Notes pale in comparison to the massacres on 7 October 2023.

The UK, USA, Canada, European Union, Australia are among a number of countries that have designated Hamas a terrorist organisation. The UK was somewhat late to designate the whole group as a terrorist organisation. Before 2021 we distinguished between its political wing and military wing.

Hamas formally established Hamas IDQ in 1992. Hamas IDQ was proscribed by the UK in March 2001. At the time it was Her Majesty's Government's assessment that there was a sufficient distinction between the so called political and military wings of Hamas, such that they should be treated as different organisations, and that only the military wing was concerned in terrorism. The Government now assess that the approach of distinguishing between the various parts of Hamas is artificial. Hamas is a complex but single terrorist organisation.

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