National Security Bill

Lord Carlile of Berriew Excerpts

Committee stage
Wednesday 21st December 2022 Lords Chamber

[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.

[Lord Butler of Brockwell (CB)]

I think my noble friend is referring to Ponting, not Westland.

[Lord Carlile of Berriew (CB)]

I thank my noble friend for that correction—yes, it was Ponting, not Westland. I apologise; I had the wrong incident in my mind.

My fourth point is about the life sentence contained in subsection (3) of the proposed new clause. I simply do not like tautologies such as “manifestly unjust” in criminal sentencing provisions. In my view, if there is to be a provision of this kind—we have been told that it has been drafted very carefully—it should not contain tautologous phrases like that. “Unjust” will do very nicely, as far as I am concerned.

My fifth point is about the authority for such a prosecution. The noble Lord, Lord Bethell, referred to the involvement, presumably, of the Director of Public Prosecutions in authorising such a prosecution. However, as drafted, this proposed new clause would permit a private prosecution, which could be stopped by the Director of Public Prosecutions only in certain circumstances. Private prosecutions—often justifiably—are becoming more fashionable and frequent, particularly in fraud cases which the authorities are not able to undertake for reasons of scale and cost. Those are perfectly defensible private prosecutions, as results in the courts have shown. However, the use of private prosecutions for oblique motives in this context seems to be a very realistic possibility. I therefore urge that if we are to have a revised treason offence, it should be prosecutable only with the authority of the Attorney-General.

Finally, the House should pay very close attention—I would say this, as a former Independent Reviewer of Terrorism Legislation—to the views of Jonathan Hall KC, who has considered this matter in detail and with whom I agree. I also simply pose a rhetorical question: who seriously thinks that ISIS would be discouraged in any way whatsoever by the introduction of this clause? The Government are right in the decision they have taken, and I hope that they will stick to their view.

[Lord Anderson of Ipswich (CB)]

My Lords, it is a pleasure to follow two such clear and thought-provoking speeches. When this House has debated treason offences in recent years, it has generally been in the context of lending support to terrorist groups, particularly in foreign theatres such as Iraq and Syria. It has never seemed to me that there is much point in bringing treason into this. The bristling arsenal of counterterrorism law is already equal to any conceivable type of assistance to terrorism or adherence to a terrorist cause, whatever the nationality of the subject and regardless of the state, if any, against which terrorism is directed. As the noble Lord, Lord Bethell, put it, the boundaries are closely drawn and abundantly clear.

Prosecutions for treason in this area would certainly have the potential to raise the emotional temperature, both for us and for the terrorists themselves. I am against such prosecutions because they are exactly what the terrorists want: to elevate their squalid and immoral behaviour into some sort of noble cause. I remember this point being well made from the Government Front Bench by the noble Baroness, Lady Williams, who is not in her place, shortly after I joined your Lordships’ House in 2018. She said that

“prosecuting terrorists for treason would risk giving their actions a credibility … glamour and political status that they do not deserve. It would indicate that we recognised terrorists as being in some formal sense at war with the state, rather than merely regarding them as dangerous criminals.”—[Official Report, 31/10/2018; col. 1382.]

No doubt this is why militant republicans in Northern Ireland were not given the platform of treason trials but rather prosecuted for murder, firearms and explosives offences and, more recently, catch-all offences such as the preparation of terrorist acts, which carries a maximum sentence of life imprisonment.

If we are looking for simple and effective ways to prosecute foreign terrorist fighters—particularly if they are suspected to have been active in a country where assistance from the authorities in gathering evidence is unlikely to be forthcoming—we would do better to concentrate on the offence of entering or remaining in a designated area, which was pioneered in Denmark and Australia, recommended for consideration in one of my own reports as independent reviewer, and introduced by the Counter-Terrorism and Border Security Act 2019. However, I believe that no terrorist hotspot has ever been designated under that Act, so the provision remains unused.

This amendment moves the debate on, as the noble Lord, Lord Bethell, explained, in that it relates to aiding not terrorism, but hostile foreign powers. The clause would target those who assist the Governments of countries with which we are at war or which wish to attack the UK by unspecified means including, I assume, cyberattacks on our national infrastructure. Unlike its Australian equivalent, which was introduced after 9/11 but is still to be used for the first time, it would relate only to hostile state activity—indeed, hostile state belligerence.

I look forward to hearing the Minister’s view on whether there is a gap in our law regarding assistance to the enemy—or will be one once the Bill, including Clauses 3 and 13, has become law. There might be a gap: I believe that Canada and New Zealand have their own laws against assisting the enemy, though I am not very familiar with them. Our own Foreign Enlistment Act 1870, introduced to restrict mercenary activity in the wake of the American Civil War and Franco-Prussian War, may not be as antiquated as the Treason Act 1351, but it was last used in the aftermath of the 1896 Jameson raid. It should certainly be reviewed if we are thinking of legislating in this area.

As we heard from the noble Lord, Lord Bethell, advocates of a treason law are often motivated by a sense that betrayal—in the words of the Policy Exchange report to which he referred, which was co-authored by the current Security Minister—

“is a specific crime against society and one that deserves punishment.”

I entirely understand that feeling, but betrayal is a regrettable fact of life, and one which we do not consider deserves special punishment in other contexts. The child who kills his parents betrays the family bond, but parricide and matricide are simply types of murder. Those who betray the most sacred bond of all—that of matrimony—may be called adulterers but are not criminalised at all. Can it be said that the bond of citizenship is of a wholly different nature, such that to break it must attract the most severe consequences? I think that is a difficult argument to make, particularly in circumstances where it is now so easy for the Home Secretary to break that bond by depriving people of their citizenship whenever she considers it

“conducive to the public good”.

Incidentally, that is something I hope we will look at some day: in the 15 years to 2020, there were 175 such deprivations on national security grounds alone.

This amendment, interestingly enough, does not follow the Policy Exchange model. Like its enacted but unused Australian equivalent, it has nothing whatever to say about betrayal. It applies to everyone, without limitation to British citizens or even to those who have been given leave to enter and remain in the United Kingdom. I assume it is not intended to apply extraterritorially, or it would criminalise the soldiers of foreign armies, contrary to the principle of combat immunity. But if the amendment is motivated by the desire to punish the betrayal of those who owe allegiance to the Crown, it does not succeed in that aim. Indeed, it is difficult to see why it flies under the banner of treason at all.

My position is simple. If there is a gap in the law as regards material assistance to the enemy, I would be in favour of filling it with an offence punishable by life imprisonment. That offence would be directed to our protection and would therefore apply to all persons within the jurisdiction. Betrayal of a bond of allegiance to the state would be an aggravating factor but not the basis for a separate treason offence, which is needed in neither the terrorism context nor the hostile state context.

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[Lord Carlile of Berriew (CB)]

My Lords, Amendment 44 is in my name and that of the noble Lords, Lord Ponsonby and Lord Wallace, who has just spoken. I am reassured that I seem to be keeping better company than is my wont, which gives me some confidence for this amendment.

Before I get to Amendment 44, I want to say that I broadly support the amendments that have been tabled by the Minister, though I have real concerns about the phrase “spiritual injury”. In my inquiries into this, I fed into the internet, by mistake, “spritual injury”. Undeterred, the search engine came up with numerous definitions of spiritual injury. Interestingly, some are related to veteran issues. One of them, which comes from Australia, requires careful listening:

“It is proposed that a Spiritual Injury occurs when an incident or event creates a break in the relationship between an individual and their concept of God.”


It is a brave Government who go into that area.

This reminds me of a dinner I used to have from time to time with Ian Paisley, when I was a Member of the other place. The definition is rather similar to one—which I will not recount—that Ian Paisley once gave me of “conciliation”, which was as incomprehensible as what I have just read. He accompanied it with a comment about poor farmers, and I represented a lot of poor farmers in those days. He said that a poor farmer is one who does not have a Mercedes.

I turn now to my original point and Amendment 44. There is a very good reason for Amendment 44. It is an attempt to put on the political parties some responsibility for what happens to them, and particularly where they obtain their money. Having not been a member of a political party for some years—before that I was a member of a fairly virtuous political party—I believe that the political parties are prepared to take their proper responsibility for this area of their lives, and that they should be taking that responsibility.

There are major concerns about foreign financial influence on political parties. It is capable of being covert and indirect. It would not be right to impose criminal penalties on political parties when other measures are available and effective. I suggest that Amendment 44 is proportionate. It places a proper duty on political parties. It is unsensational; it is not the stuff of headlines. It is placing a responsibility on those political parties. It is trusting of our democratic process. Although there is a great deal of criticism of the political parties, they are all committed to our democratic processes, and, when things go wrong, of the type that we are talking about, on the whole they are willing to take the necessary action to reinforce the confidence of the public. But something needs to be placed in statute that sets out what that responsibility is.

Finally, in my view, the availability of civil remedies is potent enough to deal with these issues. Political parties do not like being sued—understandably—because, as I think all have found in recent years, it is actually very costly and not a good use of resources. They are therefore likely to respond to the threat of civil remedies. I think it disproportionate to place senior officers of political parties under the risk of prosecution in circumstances where they may well not have acted dishonestly but may have acted foolishly. Civil remedies are exactly designed for that sort of situation. So although I heard what the Minister helpfully said at the beginning about this amendment, I invite the Government to consider it carefully, because I think it would instil greater confidence in political parties and strengthen the political process.

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[Lord Sharpe of Epsom (Con)]

I am sorry to disagree with the noble Lord, but on this one I do. However, I commit to discussing this further with my counterpart at DLUHC. I will come back to the subject.

Spiritual injury was raised by the noble Lords, Lord Wallace, Lord Anderson and Lord Purvis. I will commit to write on FCDO engagement on this subject; I do not have the answers to those questions. What is spiritual injury and why is it part of this offence? Basically, it mirrors the Elections Act 2022. The term “spiritual injury” covers the potential harmful impact on an individual’s spiritual or religious well-being that could be directly caused by another individual—for example, excluding a person from the membership of an organised belief system or banning them from attending a place of worship. The term “undue spiritual pressure” could include, for example, pressuring a person to commit an act by suggesting that doing so is a duty arising from the spiritual or religious beliefs that a person holds or purports to hold. In addition, “undue spiritual pressure” could refer to conduct by a person that alters, or has the potential to alter, a person’s spiritual standing or well-being.

Reference to “spiritual injury” already exists in the definition of “undue influence” as set out in Section 114A of the Representation of the People Act 1983. Undue spiritual pressure is a new element of undue spiritual influence in the clarified offence in Section 8(4)(e) of the Elections Act, as part of efforts to clarify what types of conduct amount to an undue influence. I hope I have answered that question.

For these reasons, the Government cannot accept this set of amendments. I ask the Committee to accept the Government’s amendments to improve the foreign interference offence.

[Lord Carlile of Berriew (CB)]

I am sorry to interrupt the Minister and am very grateful to him for giving way. On this question of spiritual injury, has the Lord Chief Justice been consulted as to whether he and the judiciary regard this definition as something that judges can sum up to juries in a clear way? Although the phrase exists elsewhere, it has not been litigated to any great extent and, without a consultation of the judges, may cause great difficulty.

[Lord Sharpe of Epsom (Con)]

The simple answer is that I do not know, but I will find out and commit to write.