Anti-social Behaviour, Crime and Policing Bill

Lord Marlesford Excerpts

Tuesday 14th January 2014 Lords Chamber

Moved by

[Lord Marlesford]

89: After Clause 110, insert the following new Clause—
“Part 10AForeign enlistmentOffence of participation in armed conflict against a foreign state at peace with Her Majesty
In the Foreign Enlistment Act 1870, after section 5, insert—“5A Participation in armed conflict against a foreign state at peace with Her Majesty
(1) It shall be an offence for a British citizen or British subject, without the licence of Her Majesty, to—
(a) participate as a combatant in armed conflict against any foreign state at peace with Her Majesty, or(b) induce any other British citizen or British subject to participate in armed conflict against any foreign state at peace with Her Majesty. (2) It shall be a defence for a British citizen or British subject charged with an offence under this section to—
(a) notify the Secretary of State in the Foreign and Commonwealth Office before such participation in such armed combat, or(b) prove that they acted in self-defence.(3) A notification under subsection (2)(a) must be made in writing, and the sharing of any information therein by the Foreign and Commonwealth Office with other organisations is permitted notwithstanding any requirements of the Data Protection Acts.
(4) A person guilty of an offence under this section shall be punishable by—
(a) fine and imprisonment, or either of such punishments; and(b) forfeiture of any United Kingdom passport held by the person, or(c) deprivation of citizenship under section 40(2) of the British Nationality Act 1981.””

[Lord Marlesford (Con)]

My Lords, I apologise for detaining the House rather late on a quite different subject from that which we have been discussing in the past hour or so. Let me first explain why I am moving Amendment 89, to add a new section to the Foreign Enlistment Act 1870 to make it an offence to participate as a combatant in armed conflict against a foreign state without the licence of Her Majesty. My purpose in doing so is to defend the realm, which is the first duty of any British Government.

As the world recovers from six years of financial crisis, the determination of the expanding Islamic jihadist factions to wage terrorism in the West is a growing threat to the stability and future of our citizens. The growth of Islamist jihad is now as dramatic as anything that has been seen since those decades of expansion that followed the death of the Prophet Muhammad in 632 AD. This now includes persecution of Christians in many Muslim countries, particularly Pakistan, Iraq, Nigeria, Egypt and now Syria, which was once an oasis of religious tolerance. It is reminiscent of Stalin’s description to Beria of the Bolsheviks as,

“a sort of military-religious order”.

The brutal ferocity, using a combination of guerrilla warfare and terrorism, with which jihad is being pursued by a relatively small number of fanatical Islamists is hard to counter. The Islamist challenge is the one issue on which the five permanent members of the UN Security Council share a common interest.

Components of the disorder that has followed the Arab spring include: a desire for freedom; an aspiration for better living standards; hope for democracy; tribal conflicts; revenge on oppressors; incitement to new human rights abuses and other activities—all of which are overlaid with the historical and tragic hatreds between Sunni and Shia, which are reflected both nationally and regionally. Both Sunnis, led by Saudi Arabia, and Shias, led by Iran, struggle for hegemony. Over that hovers the shadow of the Islamist Wahhabi agenda, of which the new generation al-Qaeda is the guardian and choreographer for a world-scale jihad to install Sharia law under a Sunni caliphate in as many countries as possible.

In Libya, the operation of various militant groups has now raised the risk to a level where international construction companies are starting to withdraw their personnel from major development programmes. In Iraq, the ferocity of the Sunni backlash against the Shia majority has led to rapid escalation of sectarian terrorism with a massive death rate. With the establishment of al-Qaeda-dominated Islamist factions in Yemen, the Government are struggling to maintain control over the country.

It is now clear that American and European policy towards Syria has been a disaster. Western moral support with implied crucial military backing for the rebellion against Bashar Assad sustained and expanded the struggle to a point where the brutality of Assad’s resistance outraged international opinion. Then in August, plans for the imminent military action by the US, Britain and France to achieve regime change in Damascus were aborted after the British participation was voted down by Parliament. By then, the Islamists had taken control of the rebel forces and any hope of democracy in Syria was replaced by the wholly unacceptable prospect of an al-Qaeda-dominated Islamist state perhaps even worse than the present Government.

The Islamist influence is spreading rapidly inside Africa. In Nigeria, a particularly vicious form of hostage-taking terrorism by al-Qaeda is prominent. In Mali, the French have intervened against al-Qaeda. Similar intervention by French forces is taking place in the Central African Republic. In Somalia, 6,000 mulitnational Sunni militants of al-Shabaab, another al-Qaeda offshoot, are fighting 17,000 African Union troops, who are attempting to defend a weak Somali Government. In predominantly Christian Kenya, al-Shabaab is expanding its attacks, for example with the September attack on the Nairobi shopping mall.

During 2013, more British citizens were killed by terrorism overseas than in the previous seven years combined. In Pakistan there is almost total anarchy, with the army appearing ambivalent about the fight against Islamist extremists. A real indicator of the hold that the Taliban fundamentalists have over Pakistani thinking is the way in which the schoolgirl Malala, who in December 2012 was shot in the head by the Taliban for demanding education for girls, has now been demonised in certain parts of Pakistan.

All that is the backdrop to my amendment, so let me now come to the specific risks. In this, I have been guided by the evidence given on 7 November 2013 in a rare public meeting of the Intelligence and Security Committee of Parliament by the director of GCHQ, Sir Iain Lobban, the director-general of the Security Service—MI5—Mr Andrew Parker, and the chief of the Secret Intelligence Service—MI6—Sir John Sawers. They outlined some aspects of the direct threat to this country from British jihadists who go to fight overseas.

The head of MI6 said:

“The threat comes from those countries which are either secretive states, where there is ungoverned territory where terrorists can operate … the Middle East, South Asia, Africa”.

If there is a terrorist there, he said,

“it is important for our security, in the UK, that an eye is kept on him, that he is surveilled, that he is monitored. Maybe he needs to be detained and arrested at some point”.

The head of MI5 said:

“A very important strand of the threat we face is the way in which there is interaction between people who live in this country, who sympathise with or support the Al-Qaeda ideology and they travel to areas where they meet these Al-Qaeda groupings, either Al-Qaeda itself in South Asia or some of these other groupings … they meet British citizens who are willing to engage in terrorism and they task them to do so, back at home where they have a higher impact in this country”.

He went on to say that the threat,

“has grown recently and is growing … because of Syria. Syria has become a very attractive place for people to go for that reason”.

He referred to:

“Those who support or sympathise with the Al-Qaeda … message … We have seen low hundreds now of people from this country go to Syria for periods and come back, some large numbers still there, and get involved in fighting”.

He went on to say,

“the vast majority of the plots come from people who live here. There are several thousand individuals in this country who I would describe as supporting violent”,

terrorism or being “engaged in it”. I hope that I may have convinced your Lordships of the threat.

My amendment, which builds on earlier legislation, discriminates against no one. It merely means that any British passport holder who takes part in armed conflict as a combatant against a foreign state with which we are not at war, or who induces any other British citizen to do so, will be subject to penalty unless he has informed the Foreign Secretary before doing so. There could be three penalties according to my amendment: a fine or imprisonment; the forfeiture of a British passport; or the deprivation of citizenship. It would send a clear message to those considering taking part in armed jihad. It would necessitate HM Passport Office being aware of the details of other passports that British passport holders have. This is something that I have urged for a long time, as part of the better methods of defending our national borders, and I hope that my noble friend the Minister will at least be able to tell me that that is now in place.

I should perhaps add that there are already substantial powers to deal with terrorism. Indeed the Supreme Court, in R v Gul in 2013, emphasised that while there is no internationally agreed definition of terrorism in international law, in British law terrorism is very widely defined. My amendment is therefore neither needed nor intended to deal with terrorism per se; it is intended to control actions which, according to the heads of our intelligence services, could lead to people becoming terrorists. It is therefore a preventative measure, and one with sufficient sanction to deter those who might be led into terrorism by military adventure overseas.

Finally, it is because the jihadist threat is a new threat that I believe this is necessary. There was in days past a tradition of British citizens going to fight in other people’s battles with which they identify—the Spanish civil war is an obvious example—but this is quite different. In any case, the opportunity as well as the need, in effect, to get consent from HMG before becoming an overseas combatant, would ensure that no one need fear victimisation for their political or religious convictions. I believe I would have the support of the great majority of the British people in raising this issue today. I beg to move.

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach) (Con)]

My Lords, I am very grateful to my noble friend Lord Marlesford for tabling this amendment, not least because it provides your Lordships with an opportunity to consider the Foreign Enlistment Act 1870—not something that we do every day, or night. The Act prohibits British nationals from fighting in the armed forces of another state, against friendly states. The new clause would go further by creating a new offence of participation in armed conflict against any foreign state at peace with Her Majesty. My noble friend’s amendment raises an important and topical issue: that of people from the United Kingdom seeking to engage in combat abroad in so-called “theatres of jihad”, such as the civil war in Syria, to which my noble friend referred.

Although the issue of British nationals fighting abroad is not a new one, or one specific only to Syria, it is something that the Government take very seriously. Syria is now the number one destination for jihadists anywhere in the world, and there are currently thousands of foreign fighters in Syria, including a large number of Europeans. We judge that more than 200 UK-linked individuals have travelled to Syria to join the fighting. Of course, not all individuals who travel to Syria are extremists. Many simply want to support humanitarian efforts. However, those who do travel there are putting themselves and innocent Syrians in danger, and we know that a number of Europeans have already been killed in the conflict. Moreover, we know that some individuals travel to Syria—or other places such as Yemen or Somalia—to engage in fighting with terrorist groups.

The Government are working with the police and security services to disrupt travel by individuals of concern. Your Lordships will understand why I am unable to provide specific details of all of the actions that are being taken to this end—but rest assured, we support the use of the full range of available measures. In particular, where there is evidence that individuals are planning, promoting, funding, facilitating or participating in terrorist activities overseas—including terrorist fighting—the police and Crown Prosecution Service will look to prosecute them, before they go or on their return. A very wide range of offences already exists on the statute books to capture such activity, not least in the Terrorism Acts 2000 and 2006, which provide extraterritorial jurisdiction in relation to certain activities. Although my noble friend’s amendment seeks to add a further offence to the disruptive arsenal, I fear that this amendment, as drafted, entails a number of drawbacks that would undermine its effectiveness.

Firstly, the amendment recognises that, while the 1870 Act already deals with fighting for another state’s armed forces, many modern conflicts involve an array of non-state actors and irregular militias. However, like the 1870 Act, this amendment deals only with,

“armed conflict against a foreign state at peace with Her Majesty”.

Hard distinctions of war and peace made sense in 1870; Tolstoy’s masterpiece had been published just the year before. But the bases for modern conflicts are no longer so binary. The UK has not been in a declared condition of war since the defeat of the Axis forces in 1945. Today we are at peace with all states, at least in the classical sense of international law.

Secondly, the defence of notification to the proposed new offence has the potential to severely undermine the disruptive utility. Whether it was my noble friend’s intention I do not know, but the amendment as drafted gives the Secretary of State no additional power to prohibit a person who gives notice of their intention to fight overseas from going. A number of existing powers might be used to prevent such a person from travelling—and, of course, the Bill augments these by providing powers to seize passports cancelled on public interest grounds. But the amendment adds nothing to these powers. Indeed, the proposed offence bites only when a fighter who previously failed to notify returns to the UK. Anyone who does notify the Secretary of State would be completely free from the sanctions which this amendment seeks to put in place.

Thirdly, any offence that hinges on such a notification regime is likely to raise significant difficulties in enforcement. A committed jihadist is unlikely to inform the authorities of his travel plans for fear of disruption, either before or after the fact. Evidence that a person has engaged in fighting abroad would be extremely difficult to obtain, so the evidential difficulties in securing a prosecution may be no less than for the other relevant offences available.

Fourthly, although self-defence has a well understood meaning in relation to ordinary offences against the person, how it would apply in the context of overseas conflicts is unclear. Many jurisdictions have laws to deal with the use of defensive force in situations of immediate danger, and we expect British nationals to comply with local laws wherever they are. But the idea of participating in armed conflict as an act of self-defence is a difficult matter. We must take care not to legitimise the wrong-headed extremist narrative that paints so-called jihadists as fighting a war of self-defence on behalf of Muslims internationally.

Finally, the amendment proposes sentences for the new offence that could include forfeiture of a passport and deprivation of British citizenship. As noble Lords will recall from our discussion in Committee of what is now Clause 138, passports are issued under the royal prerogative. The Home Secretary already has the power to refuse or withdraw passports where she believes that a person’s activities—past, present or proposed—are so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest. The British Nationality Act gives the Home Secretary powers to deprive persons of their British citizenship when she is satisfied that deprivation is conducive to the public good, provided that the person is not left stateless as a result. As such, these sentencing options would not be necessary.

I thank my noble friend Lord Marlesford for raising the issue of British nationals fighting overseas. I assure your Lordships that this is something that the Government take extremely seriously. Nevertheless, for the reasons that I have set out, I do not believe that the amendment would be the right way to proceed and I ask my noble friend to withdraw it.

[Lord Marlesford]

My Lords, I am most grateful to my noble friend for having raised so many points so clearly and in such detail. I hope very much that there will be action under the present provisions of the law to ensure that, wherever possible, British citizens who have engaged in jihadism overseas, will be prosecuted on their return to this country—as he said that they already can be under the existing law. I hope very much that the removal of passports—and, if appropriate, of British citizenship—will take place.

This is a very serious subject. The evidence given by the security chiefs to Parliament was chilling. I had no idea what a serious situation we face, and I am delighted that the Government have stated that they are well aware of it and are dealing with it. I therefore beg leave to withdraw my amendment.

Amendment 89 withdrawn.