National Security Bill

Lord Bethell Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

Moved by

[Lord Bethell]

37A: After Clause 12, insert the following new Clause—
“Treason: aiding a hostile foreign power(1) A person commits an offence if the person engages in conduct falling within subsection (2), with the intention to aid—(a) an attack on the United Kingdom by any foreign power,(b) any foreign power that intends to attack the United Kingdom or is engaged in a process of planning or preparing for an attack on the United Kingdom, or(c) any foreign power with whom the United Kingdom is engaged in armed conflict.(2) A person engages in conduct falling within this subsection if the person does any act that is designed to—(a) help carry out an attack or facilitate the carrying out of an attack on the United Kingdom,(b) help the planning of or preparation for an attack on the United Kingdom,(c) aid the military or intelligence operations of a foreign power falling within subsection (1),(d) impede the operations of His Majesty’s forces,(e) prejudice the security and defence of the United Kingdom, or(f) endanger life.(3) A person guilty of an offence under this section must be sentenced to imprisonment for life unless, given the circumstances of the offence and the offender, a sentence of imprisonment for life would be manifestly unjust.”

[Lord Bethell (Con)]

My Lords, Amendment 37A on treason and aiding a foreign power is in my name and that of the noble Lord, Lord Faulks, who is extremely frustrated that he cannot be here today.

This is an excellent Bill. It is clear from the proceedings in this Chamber that it is welcomed, and I very much echo those sentiments. However, I have moved this amendment because I believe that there is a significant gap in the legislation. An important signal to the British public is needed in an era of hybrid warfare and mass migration. These points were very well made in the Policy Exchange publication Aiding the Enemy, authored by Professor Richard Ekins and current Home Office Minister Tom Tugendhat, with a foreword by my friend the noble and learned Lord, Lord Judge.

We are living in an age of rising great power competition. As noted in the proceedings on this Bill, hostile states such as China and Russia are actively looking to suborn our nationals into actions that undermine our national security. As it stands, the law of treason applies only to international armed conflicts. That is where the gap is. The law of treason should pick out and condemn people who betray the UK where preparations for international armed conflict are being made or where attacks on the UK, such as cyberattacks, may fall short of the threshold required for international armed conflict. This would recognise accurately the wrong being done, which is typically worse than merely mishandling official information, and punish it accordingly. For example, in the Cold War there were British nationals who betrayed our country by passing secrets to the Soviets; they certainly deserved to be punished as traitors but were not because the law of treason was in a poor state. It remains in a poor state now, as a new cold war could be beginning, so it is time that we fixed it.

We need to speak to the hearts and minds of our citizens, to bind the British people and make it clear to those who seek to assist foreign powers to do us harm that they will be designated by law as traitors to their country. This is not about requiring patriotism; it is about the law clearly setting out that to assist a group or country to attack the country in which you are a citizen is a crime. It is for these reasons—that appeal to the heart—that similar arrangements have been recently introduced by other common-law jurisdictions such as Australia, Canada and New Zealand.

I was very struck by the story of Kimberley Miners, who travelled to Syria and returned. She said of her experience living with ISIS:

“People have no idea, but ISIS is actively searching Facebook for vulnerable people. People just like me. These people befriended me, I felt accepted.”


I feel enormous compassion for her but also enormous anger that she was so stupid as to make this decision. If our nationals had a clearer sense of where the boundaries lay, naive people would not make such mistakes.

Treason reform was dropped from the final text of the National Security Bill when it was placed before Parliament, which is a great shame. The consultation on legislation to counter state threats, with which many noble Lords will be familiar, claimed that significant historical analysis would need to be done to enable reform of treason but that that would significantly delay the Bill. I never like the idea that we should avoid good legislation because it is too time-consuming to draft; given the support for this straightforward, clearly drafted measure in many corners of the Committee, I do not think it need delay the Bill or overstress the resources of the MoJ.

One objection to a refresh of the treason laws was made by the excellent Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, who suggested that

“in order to prosecute an individual for aiding a hostile state or organisation, you have to label that state or organisation as such. Doing so could legitimise their cause and give them ‘special status and cachet’.”

I take a different view. Treason is not about labelling your enemies or legitimising their status; they put all their efforts into doing that themselves, without our help or otherwise. Jonathan Hall also suggested that juries would be worried about convicting on such a contentious crime with a controversial history. That is an important point to address, because it is exactly this squeamishness about considering treason a crime that means that we need to bring it back from the legal freezer and make it a commonly understood and demystified concept.

The incidence of treason is not going down—it is quite possibly becoming more frequent. We cannot live in a country in which a sense of social awkwardness prevents prosecution of a heinous crime. Therefore, it would be wise to leave it to the prosecuting authorities to decide which crimes can be most effectively prosecuted, as they are both qualified and rightly responsible to make these decisions. As a parliamentarian, I do not think that good law-making is best achieved by second-guessing juries. There are a number of horrible crimes for which, as noble Lords know, it is sometimes difficult to gain convictions, but we do it because they are important.

I am also conscious of the misuse of treason accusations by autocracies such as Russia. Accusations of treason can be abused and used to silence dissenters, but it is not logical that the misuse of a law by a tin-pot regime elsewhere means that we should not have it in this country, which values the rule of law. The best protection is good, workable legislation. That is why I ask the Minister to reconsider the decision to drop treason provisions from the Bill and to consider supporting this constructive amendment. I beg to move.

[Lord Carlile of Berriew (CB)]

My Lords, I have great respect for any new clause proposed by the noble Lord, and with the name of the noble Lord, Lord Faulks. It is therefore with some trepidation that I may strike a discordant note. I am almost intimidated by the compelling ad majorem argument which the noble Lord used, and some of the names he referred to in support of his proposal. I read the Policy Exchange document at the time, which seemed to me both ambitious and, to an extent, misguided. I will give four or five reasons why I am of that view.

First, what is described as treason in this proposed new clause is in every instance already prosecutable under existing offences. In my view, duplication of conduct under different headings is a disadvantage to the courts and creates potential difficulties with juries, which are sensitive to the labels that would be placed by conviction upon those prosecuted.

Secondly, the clause refers generally to an “attack”. Does that include cyberattacks, which are now being conducted on a very large scale by countries which have hostile intent towards the United Kingdom? Is it proportionate that a cyberattack should be punishable as treason as opposed to under the available existing legislation?

My third argument is about symbolism in criminal justice legislation. I know that some of us sat in this building in another place during the content of the Westland affair, as a result of which the jury failed to convict somebody who in law had been held by the judge to be guilty of the offence as charged. That is a result we would all wish to avoid. Others here were in very senior official positions during what proved to be a very uncomfortable episode. I look in particular at my noble friend Lord Butler, to whom I give way with pleasure.

--- Later in debate ---

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

My Lords, I agree with the noble Lord, Lord Ponsonby, that this has been a fascinating debate on a fascinating subject. I thank my noble friend Lord Bethell for introducing Amendment 37A on treason in his name and that of the noble Lord, Lord Faulks. I will now explain why the Government cannot accept the inclusion of this new clause in the Bill.

As noble Lords who are interested in this subject will have noted, the Government are looking closely at the issue of treason, as stated by the Secretary of State at Second Reading in the other place. The Government have been reviewing the case for and against reform of the UK’s treason laws and that review has not yet concluded. What we can say is that the UK has extensive terrorism laws—the “bristling arsenal” mentioned by the noble Lord, Lord Anderson—which protect the safety of the UK and its citizens from forms of terrorism which might be considered treasonous. However, it would be correct to assert that treason law is outdated and in need of reform in light of the growing threats from foreign state actors. To answer the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, the Bill provides a suite of measures for where somebody assists an enemy; it just would not be called treason.

I understand the significant history regarding the evolution of treason in the UK. Because of this, arguments have been made in this House and outside that an offence of treason goes further than criminal offences in relation to terrorism and state threats. Treason acknowledges the duty that a citizen has not to betray their state and many consider that a reformed, modernised treason offence would stress the importance of this through a specific criminal offence, reaffirming the bonds of citizenship that we have to the UK and to each other.

This amendment and others relating to treason have been proposed in previous Bills, but considering the role of treason in modern society is a substantial undertaking and one that we are looking at very closely. I acknowledge that this amendment and others seek to address concerns regarding the lack of a usable modern treason offence in the UK, so we welcome debate on this important topic.

Obviously, I reassure the noble Lords, Lord Bethell and Lord Faulks, and others that the Government do take this issue seriously and will listen carefully to the views offered by all noble Lords. However, as noble Lords may know, the Government are currently considering options for a formal review of this issue, including the possibility of the Law Commission conducting a review in this area. This area is complex, as the noble Lords, Lord Carlile and Lord Purvis, so eloquently explained.

I therefore thank my noble friend once again for his amendment but ask him to withdraw Amendment 37A while the Government’s review is ongoing.

[Lord Bethell (Con)]

My Lords, I am enormously grateful for the thoughtful and detailed debate we have had on this amendment. I will address a few of the points—I cannot address all of them—and I will seek to be brief.

This amendment is not about the past—it is not about Clive Ponting or Lord Haw-Haw and what happened a long time ago—but about the future. The future has states that use as a strategy the suborning of our citizens as an important part of hybrid warfare, at a scale and with a sophistication that we just have not seen for more than a generation—for two generations—and which, given the way in which they do it, we have probably never seen before. That is why this amendment is important: it is to combat a strategic threat from our enemies.

It fills a gap. The suborning of our citizens is not wholly covered by everything in the Bill at the moment, but I take on board the points made by the noble Lords, Lord Carlile and Lord Anderson, and the noble and learned Lord, Lord Hope, and others on this. Duplication is not a sin in drafting laws. I have seen it happen before and I think that there is a gap that could be occupied by an amendment such as this.

A number of noble Lords asked what kind of attack this might cover. It would absolutely cover the contribution to a cyberattack. That is exactly the kind of modern warfare that our enemies are seeking to suborn our citizens to join in on, and therefore we should be thinking very much indeed about all the contributions our citizens could make to hybrid war when we are thinking about this.

As regards the impact on ISIS or a terrorist group, I completely agree with the noble Lord, Lord Carlile, that ISIS is not going to be intimidated. I am more worried about Kimberley—the person who does not know that they are doing something wrong by helping one of our enemies.

Lastly—I will try to keep my comments brief; I appreciate that I have not tackled all of the points—I confess for a moment here to a massive cognitive dissonance. Noble Lords and noble and learned Lords have spoken about their anxieties about the word “treason” as if it was a super-hot piece of vocabulary that was too hot to handle. I simply do not have that sentiment at all; it does not touch me in the same way that it clearly touches others. I thought the noble and learned Lord, Lord Hope, spoke very well about that. Words such as theft, rape and terrorism are important parts of our legal vocabulary. I regard treason as simply akin to any one of those, and the arguments made—

[Lord Hope of Craighead (CB)]

The problem is—I speak as a former prosecutor—that if you are facing a jury with a charge that has “treason” on it, that elevates the temperature of the debate. It is much easier if you concentrate on the actual words of the offence that you are trying to get the jury to focus on. That is the point. The prosecutor has to decide whether he or she wants to use the word treason at all in the charge. It is better to avoid it if you can get the substance of the defence into ordinary language and get the jury to consider the facts in the light of ordinary language without being diverted by the more exciting “treason”. That is my point.

[Lord Bethell (Con)]

My Lords, pragmatism is completely right; I understand the noble and learned Lord’s point and I do not doubt his insight in the slightest. I have a slightly different perspective. That seems to be an argument to rehabilitate the thought rather than to avoid the crime. If something is happening that threatens our national security and is a crime, we need to think of ways of communicating that to juries and to prosecutors. In the same way, juries sometimes struggle with “rape” and are sometimes reluctant to convict—but obviously that is not a reason to not take rape to trial. Given the mood of the House, I beg leave to withdraw the amendment.

Amendment 37A withdrawn.