Counter-Terrorism and Border Security Bill

Lord Faulks Excerpts

2nd reading (Hansard): House of Lords
Tuesday 9th October 2018 Lords Chamber

[Lord Faulks (Con)]

My Lords, my noble and learned friend Lord Garnier has given us a taste of things to come. I have had the privilege of knowing him since we were adolescents, so it is a particular pleasure for me to see him in his place today—yes, lawyers were children once.

It is a matter for celebration that so many of our current politicians are the sons and daughters of immigrants and that people come into politics from all sorts of backgrounds. My noble and learned friend, on the other hand, comes from a family with a long tradition of public service, and this country is richer for that tradition. He has managed to combine a quarter of a century as a Member of Parliament with a successful practice at the Bar, where he has been for some time one of the leaders in the field of defamation and media law. He was also instrumental in the introduction of deferred prosecution agreements to the prosecutorial armoury; a valuable weapon against corporate economic crime. Further, he has sat for some time as a recorder of the Crown Court.

Despite all these achievements, and a term as Solicitor-General, my noble and learned friend has a quality that is all too rare in barristers: modesty. I am confident that his contributions to debates in your Lordships’ House will be relevant and brief, and that, unlike some of us, he will not consider it necessary to give the House the benefit of his views on every subject. My noble and learned friend Lord Gamier is a most welcome addition to your Lordships’ House.

I now turn to the Bill. The scale of the terrorist threat to this country can hardly be overstated, whether from extremists claiming allegiance to the Muslim faith or from state-sponsored terrorism as we witnessed in Salisbury. We should pay tribute to the contribution that the police and the security services make to keep us as safe as they can in increasingly challenging circumstances.

One fact that I took away from the Home Secretary’s recent speech in Birmingham was that an estimated 800,000 people who currently live in this country do not speak English. I am not of course suggesting for a moment that if you do not speak English you are likely to be a terrorist. However, it is a considerable challenge for our security services simply to understand what is going on in communities where English is not spoken or not spoken much, and where there is little or no loyalty to British values or traditions.

In its report on the Bill, the Joint Committee on Human Rights was critical of it in a number of respects, identifying various potential violations of human rights. Of course, that is the remit of the committee, of which I was once a member, and I do not for a moment impugn the integrity of the process, as it was suggested the security Minister did in the other place. However, I wish us to bear in mind that, in this country, there was a long-established respect for free speech before Article 10 of the European Convention became part of our law through the medium of the Human Rights Act in 1996. If we must look at issues through the prism of the Human Rights Act, can we bear in mind Article 2, the right to life, and Article 8, the right to a family life, in the context of those affected by terrorism? The first duty of a Government is to keep their subjects safe. To do so, there must sometimes be restrictions on individual rights.

The primacy of individual rights is such that loyalty to one’s country seems in some quarters to be regarded as something of an option, coming below loyalty to one’s religion or even one’s football team. Many would agree with EM Forster, who wrote in 1938 that he hoped, given the choice, that he would have the guts to betray his country rather than his friends. But if you choose to live in this country, is it so unreasonable to expect you to show some loyalty to it and not to give assistance to our enemies?

The word “treason”, mentioned by my noble friend Lord King, has a dated feel about it, but may I also commend the recent Policy Exchange publication, Aiding the Enemy: How and Why to Restore the Law of Treason? Its authors include two Members of Parliament, one Labour and one Conservative, and it has a foreword by the noble and learned Lord, Lord Judge. It provides a compelling case for the return to the statute book of a modern law of treason—the 1351 statute is plainly no longer fit for purpose.

The new offence of entering or remaining in a designated area may help but clearly needs further scrutiny. For British subjects who leave this country to serve with ISIS or the Taliban, for example, is a maximum sentence of 10 years really enough? What about Anjem Choudary, sentenced to five and a half years in prison and due out this month? Even though this Bill promises, rightly, to end in certain circumstances automatic release on serving half a sentence, that is too late for Choudary and others. Does the current statutory framework adequately capture the gravity of being a recruiting sergeant for ISIS at a time when it is engaged in combat with our forces and actively trying to attack the United Kingdom? The time may well have come to update the law on treason as Australia, Canada and New Zealand have done.

As the noble Lord, Lord Janvrin, pointed out, radicalisation in prison is a real threat. Government policy is to imprison those who pose a threat to national security in separate units to minimise the risk of other prisoners being radicalised. Very few have in fact been separated, apparently because of apprehension in the Prison Service about human rights litigation. Perhaps the Minister would care to comment on that.

This Bill deserves careful scrutiny, and it is clear that there is the expertise in this House to do just that. There are certainly improvements that can be made. For example, the Law Society has made some powerful points about the erosion of legal professional privilege at border interceptions, referred to by the noble Lord, Lord Rosser. For my part, I need convincing that all those restrictions are currently justified. But, for the most part, I welcome the Bill and hope that it receives support across the House.

Counter-Terrorism and Border Security Bill

Lord Faulks Excerpts

Committee: 1st sitting (Hansard): House of Lords
Monday 29th October 2018 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, I have various amendments in this group, but I start with a general point: all the amendments in the Marshalled List where mine is the first name were proposed by the Joint Committee on Human Rights, of which I am a member, and I have been tasked by the committee to raise them with your Lordships. I take this opportunity to thank not only the committee but its officials, who have done a huge amount of work on the Bill, particularly Samantha Godec. Having said that, I have no doubt that my noble friends will agree with much that I have to say, but I leave that to them. I suspect that I will not be able to refrain from commenting on some other amendments.

The committee has put forward amendments that seek to ensure that the Bill restricts rights only to the extent necessary and proportionate—terms with which noble Lords will be very familiar. I make it clear, though I hope it does not need saying, that this is by no means wholesale opposition to the Bill. We recognise that the Government need powers to defend national security, but when powers engage human rights or interfere with them, they must be clearly prescribed, necessary in pursuit of a legitimate aim and proportionate to that aim. The committee was concerned that the Bill legislates close to the line and sometimes crosses it, taking the criminal law further into private spaces. It looked, as noble Lords would expect, for the right balance between liberty and security.

Among the evidence that we received was a long paper from Professor Clive Walker, adviser to successive Independent Reviewers of Terrorism Legislation, who commented:

“It can readily be demonstrated that the United Kingdom already has the most extensive counter terrorism code in Europe if not the world”.


That was a point made by Max Hill before he became the independent reviewer; he has said several times that we have sufficient offences, we do not need any more. The obligation on us is obviously to identify whether there are gaps that need to be filled, and whether we agree with the Government about that. Professor Walker also made the point, which I think is worth repeating at this point—I am not seeking to make a Second Reading speech—that,

“criticism should be made of the failure on the part of Home Office to issue any consultation paper prior to the CT&BS Bill”.

He wrote about the value of a pre-legislation phase, allowing not only for public scrutiny but for other independent proposals, and said how well that worked in the case of the Sanctions and Anti-Money Laundering Act.

My name is attached to Amendments 3 and 5 in this group and I have also given notice that I oppose Clause 1 standing part of the Bill.

[Lord Faulks (Con)]

The noble Baroness has indicated to the House that she speaks, in effect, on behalf of the Joint Committee on Human Rights, and we are all grateful for its report. Can she help the House in that context with one thing? The Joint Committee on Human Rights, of course, has particular reference to the provisions of the Human Rights Act and the articles of the European Convention on Human Rights. Does she and her committee consider it important also to consider the rights of citizens affected by, or potentially affected by, acts of terrorism or encouragement to terrorism, whether it be their rights under Article 2 or Article 8 of the convention? These are, of course, also human rights.

[Baroness Hamwee]

Indeed they are, my Lords, and that was why I very deliberately mentioned security as well as liberty in my opening words. It would be wrong to give the noble Lord an assurance that we specifically discussed those rights in the same way or at the same length as other rights, but I have been in enough meetings of the committee to know that that is a backdrop to the other rights we address. I hope that reassures him. It may not, but I did say that we were not opposing this Bill in any wholesale way.

Amendment 3 would leave out paragraph (b) and instead insert a reference to intention,

“to encourage support for a proscribed organisation”.

Other noble Lords have referred to that at some length. I agree with the point about context made by the noble Baroness, Lady D’Souza—whether this is the point at which to agree with her or not, I do not know. But I do think context assists one to understand what is in the mind of a person making a statement or undertaking an act.

Regarding Amendment 5, I am grateful for the support of the noble Lord, Lord Carlile. His point about open discussion is an important one. I know that he balances the importance of transparency and free debate on these matters. I agree with the noble Baroness, Lady Jones, about “support” and “supportive”. In debate and correspondence, the Government have relied on Section 4 of the 2000 Act as providing a route to apply to the Home Secretary for de-proscription. I do not challenge that, but do not think it is by any means a complete answer to this. The defence in the 2000 Act only protects statements of support related to a de-proscription application. It is not a defence for those taking part in debate outside those proceedings.

The clause creates a new offence, and the Minister in the Public Bill Committee in the Commons said:

“Dealing effectively with the power of inspiration or incitement is not new”.—[Official Report, Commons, Counter-Terrorism and Border Security Bill Committee, 28/6/18; col. 71.]


I do not read this clause as being about incitement or inspiration. Recklessness is lesser than that.

I have a specific question for the Minister about new subsection 1A(b), which refers to a person to whom a statement, or whatever, is directed. I would like to understand the term “directed”. Are you directing something if it is not addressed to a named person or an identifiable/identified group? If you tweet or post something on Facebook, accessible to the world, are you directing that? The Minister in the Commons made a point similar to the one made by the noble Lord, Lord Carlile. He gave the example of walking down a high street swinging a baseball bat. Are the people who might see a tweet equivalent to the pedestrians in the high street?

--- Later in debate ---

[Viscount Hailsham]

My Lords, I shall speak briefly to Amendments 3, 4, 5 and 6. I accept that there may well be a need to further criminalise the overt support of proscribed organisations; I do not dissent from that view. However, we have to accept that what we are proposing in the Bill is an infringement of human rights—the right to free speech. The noble Baroness, Lady Hamwee, is entirely right about that. We therefore need to apply the test of proportionality: to weigh up the evil in one hand and then look at the consequences of what is proposed in the other. It is in that context that I would be very much happier—I now speak directly to my noble friend on the Front Bench—if we were to look again at the concept of specific intent. I would be very much happier if what we were providing for was that the offence was establishable only on proof of specific intent. I find myself very much in support of Amendments 3 and 4 because they seem to satisfy the test of proportionality.

To comment briefly on Amendment 5, I find myself entirely in agreement with the noble Lord, Lord Carlile. Anyone who advocates the de-proscription of a proscribed organisation seems to fall foul of the general language of this part of the Bill, and that should not be the case. It is perfectly proper as part of public debate to argue that a specific organisation should not be proscribed. I therefore hope—

[Lord Faulks]

My Lords—

[Viscount Hailsham]

May I just finish this point? Then of course I will give way to my noble friend. I hope the Government will look sympathetically at Amendment 5.

[Lord Faulks]

I understand what my noble friend says about Amendment 5 but I am little puzzled by why suggesting that a proscribed organisation should cease to be proscribed is supportive of a proscribed organisation. It is one thing to say that proscription should cease; it is another to be supportive of it.

[Viscount Hailsham]

I wondered that myself but came to the conclusion, having weighed up the language, that to argue that something should not be proscribed probably does constitute action supportive of the proscribed organisation. Even if I was wrong about that, though—in this context my views are shared by the noble Lord, Lord Carlile—it is certainly an arguable position, and I am in favour of clarity in law. That is why I would go with Amendment 5 in the name of my noble friend.

That brings me to Amendment 6, where I am afraid I part company with my noble friend.

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[Lord Carlile of Berriew]

My Lords, I rise to support the amendment moved by my noble friend Lord Anderson of Ipswich. It highlights a number of extremely important points, not least that there should be clarity and definition for people who may wish to visit a designated area. I have some reservations, but in relation to proposed new paragraph (c), perhaps I may give an example of the crucial need to attend court or another body exercising judicial power. It may well be that a relative would wish to obtain the custody of a child who is in danger in the designated area and would not be able to do so without entering that designated area. I agree with the noble and learned Lord, Lord Garnier, and the noble Earl, Lord Attlee, that the definition of “journalist” will need attention because it can all too easily be both a benign and a malign term.

I want to raise one other issue not directly connected to this amendment, but to avoid the duplication of speeches I shall refer to it now. I have been approached by some Jewish groups that have expressed concern that designation orders might be made in relation, for example, to the Golan Heights where quite a number of young people go on the Aliyah to kibbutzim or to Sderot, the town that is regularly the recipient of missiles fired from the nearby Gaza Strip. I have been bold enough to reassure those who have raised these issues that it is most unlikely that the Government of the United Kingdom would designate areas such as this because of the international political and diplomatic implications of doing so. However, at some point in the debate I would invite the Minister to reassure the Committee and the people who have made representations that the normal flow of people, albeit to sometimes quite dangerous places such as Israel, will not be interrupted as a result of these provisions because that would cause tremendous difficulties, particularly for families divided between the cities of England and Wales and Israel.

[Lord Faulks]

My Lords, I accept entirely that it is better, if at all possible, to clarify what constitutes not so much a defence but in which circumstances there will not be an offence, which I think is the way Amendment 17 is framed. If I understand it correctly, the answer to most of the objections lies in the word “solely” because, of course, if there is evidence of mixed reasons for someone being in an area, these provisions would not have a proper ambit at all. However, I share the reservations of my noble and learned friend Lord Garnier about visiting a dependent family member.

I want to raise a more general point about what Clause 4 intends to do. It is concerned with the designated area and the Government are not concerned primarily about protecting people visiting the area and ensuring their safety. Of course, journalists and those working for humanitarian purposes risk their own safety very considerably by going into such areas. The Government are concerned—perhaps my noble friend the Minister will confirm this—to prevent the risk of terrorism, as the Bill is headed. When looking at the risk of terrorism, the Explanatory Notes state:

“Such a risk may arise, in particular, if a conflict in a foreign country, potentially involving a proscribed terrorist organisation, acted as a draw to UK nationals or residents to travel to that country to take part in the conflict or otherwise support those engaged in the conflict”.


In other words, we want to stop people fighting against the United Kingdom. That, I suggest, is what this is really about, although my noble friend may disabuse me of that. If so, this is quite a convoluted way of achieving the aim of preventing an individual or individuals assisting or fighting against the United Kingdom. I shall raise this point again on Wednesday under my own amendment concerning the possible introduction of the offence of treason, because that is what it would be. Although this is a useful provision and I can see what it is driving at, I respectfully wonder whether it is really the answer to the evil it is aimed at in this case.

[Baroness Hamwee]

My Lords, I tabled Amendments 21 and 22 in this group. I was not surprised, given the authors, to be more attracted to Amendment 17 than to my own amendment, but I have a couple of questions related to points already raised. I too wonder about the word “solely”. If, for one or more of the reasons listed, someone went for a reason authorised by the legislation or in regulations but did something outside them, might that cause a problem? Perhaps more importantly, I also have a question about the registered charity, regarding the jurisdiction in which it would have to be registered. It is important to address the position of charities, not just for charity workers but because the trustees will have a duty of care towards their staff. They will have an important interest in ensuring that what their staff are doing is appropriate within what the law allows.

I turn to the phrase,

“visiting a dependent family member”.

I wonder about the word “dependent”. A sick mother would be unlikely to be dependent if the son or daughter is not there supporting the family member. Perhaps one might look at extending that. However, I like the approach. I do not think it is an alternative to what is set out in Amendment 22. That would provide for regulations for authorisation—not just the grounds for applying for authorisation but also the “procedure for applying”, the “timescales for determining” it, which might be important in particular circumstances, and “rights of appeal”, which should be dealt with by some means or other. As I say, this is not an alternative; rather, there are procedural points in this that should be addressed.

I am grateful to the organisation Bond for briefing me about the position in Australia and Denmark, to which the noble Lord referred. It has put a note at the end of its briefing to remind me that the proposal for the restrictions was promoted at the exact time that nine people were arrested for travelling to Syria to become foreign fighters—proving that the existing legal provisions are “rather effective”, to use its words.

I am aware that in Australia there is an overarching exemption for the International Committee of the Red Cross, but I understand that it can be extended to other humanitarian organisations. I do not know whether any noble Lord taking part in this Committee knows how far that has been extended. I take the points about monitoring and, while putting forward these provisions, I am aware that we must balance that against the administrative burden, to which I suspect the Minister may refer. There will be an administrative burden but the benefits that could be achieved by amendments such as the ones we have been debating outweigh that. I simply wanted to anticipate that argument.

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[Lord Paddick]

My Lords, clearly all the amendments in this group have their merits, but we seem to be rallying to the flag of the noble Lord, Lord Anderson of Ipswich, for very good reason. As the noble and learned Lord, Lord Judge, explained, this appears to be, at least in essence, the way forward. As the noble Lord, Lord Anderson, said, it is based on a tried-and-tested system that operates under Australian law and gives a degree of certainty that the reasonable excuse defence does not give. It covers journalism as well, which could arguably make Amendment 20 unnecessary. On the definition of what journalism means, the noble Lord’s expression,

“working in a professional capacity as a journalist”,

might be an indication of the way forward as far as that definition is concerned. I have added my name to Amendments 21 and 22 in my noble friend Lady Hamwee’s name, but, as I said, perhaps Amendment 17 is a better way forward.

The noble Lord, Lord Faulks, is obviously trailing his amendment on treason, but in addition to what the noble Baroness, Lady Manningham-Buller, said, it is more than just fighting UK forces. It could be that people are going to engage in terrorist activity against allies of the UK, not necessarily against the UK itself. We would want to deter our nationals from travelling to areas for that purpose. People might travel to those areas for a legitimate purpose and then engage in terrorist activity, but there is no way that we could legislate for that. Clearly, they would then commit a substantive offence under different legislation.

[Lord Faulks]

Can the noble Lord help the Committee by saying what legislation they would be committing an offence under?

[Lord Paddick]

My understanding is that it is an offence to travel to an area to engage as a foreign fighter. I cannot remember what exactly the legislation is, but reference has been made to it by other noble Lords this evening.

[Lord Elystan-Morgan (CB)]

Is not the Foreign Enlistment Act 1870 still extant? I think it is.

[Lord Faulks]

I am not sure about that, and I am grateful to the noble Lord for assisting. There is, of course, a Treason Act of 1351, but that is not often relied on—or not at all relied upon. The noble Lord may be right, but I was genuinely inquiring what legislation the noble Lord was referring to.

[Lord Paddick]

I am very grateful to noble Lords for their interventions. At the end of the day, the principle that the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Judge, have put forward in this amendment needs to be very seriously considered—and potentially not just for this offence, but perhaps for the other new offences in the Bill that we have already debated.

Counter-Terrorism and Border Security Bill

Lord Faulks Excerpts

Committee: 2nd sitting (Hansard): House of Lords
Wednesday 31st October 2018 Lords Chamber

Moved by

[Lord Faulks]

34: After Clause 6, insert the following new Clause—
“Treason: aiding a hostile State or organisation
(1) A person commits a treason offence if, with intent to aid—(a) a terrorist attack on the United Kingdom by any State or organisation, or(b) any State or organisation that intends to mount a terrorist attack on the United Kingdom or is engaged in a process of planning or preparing for such an attack on the United Kingdom,they engage in conduct falling within subsection (2). (2) A person engages in conduct falling within this subsection if they do an act that is designed to—(a) help carry out a terrorist attack or facilitate the carrying out of a terrorist attack on the United Kingdom, or(b) help the planning of or preparation for a terrorist attack on the United Kingdom, or(c) aid the military or intelligence operations of a State or organisation falling within subsection (1)(b).(3) This section applies—(a) in the United Kingdom, to any person who enjoys the protection of the Crown, and(b) outside the United Kingdom, to any British citizen or any person who is settled in the United Kingdom.(4) A person guilty of a treason offence shall 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 Faulks (Con)]

My Lords, this amendment in my name and those of my noble friends Lord Hodgson and Lord Bethell is to add an offence of treason to the Bill. The offence of treason, or high treason, has a rather chequered history, I readily admit. The 1351 treason offence remains on the statute book. It focuses significantly on the safety of the sovereign and prohibitions on aiding the sovereign’s enemies. Important though these matters are, it is now generally accepted that that Act is not fit for purpose, and having an offence on the statute book that cannot be used is not satisfactory.

There are now a considerable number of terrorist offences that exist to augment the criminal law. They derive mainly from the Terrorism Acts of 2000 and 2006. This Bill seeks to add to those offences, in recognition of the changing nature of the threat and to provide a nimble response, in legislative terms, to what is happening on the ground. If the nature of terrorism is changing as fast as the noble Baroness, Lady Manningham-Buller, said at Second Reading, there will inevitably be something of a legislative lag, but the Bill seems for the most part to be a sensible response. The reviewers of terrorism legislation have been vigilant in the past—two of them are Members of your Lordships’ House and are present in the Committee today—and this has very much helped the Government to consider what laws need to be updated. Ultimately, though, it is a matter for the Government how they respond to the threats and, in so far as possible, anticipate the nature of terrorist threats in future.

When I first heard the suggestion that we might need a modern law of treason, I was doubtful about either the wisdom of such a move or the need for it. Surely what was required was a much more nuanced response, and I was a little concerned about the potential risk of attracting martyrs if there was seen to be a somewhat heavy-handed response to the various threats from terrorism. I then had the opportunity to read Policy Exchange’s publication Aiding the Enemy, to which I referred at Second Reading. Its distinguished authors make a compelling case. The enthusiastic responses to the study came from a number of important sources, including the former Home Secretary, a former commander at New Scotland Yard and head of Counter Terrorism Command, and a former director-general of the Security Service.

This Bill increases sentences and creates more security at the border, together with some new offences. However, the debates we have already had in Committee illustrate how difficult it will be to satisfy Parliament, and in particular this House, that the various provisions in the Bill adequately reflect the balance between the need to protect citizens from terrorism and the need to preserve civil liberties. After all, the Liberal Democrats have given notice of their intention to oppose each of the first four clauses standing part of the Bill. In particular, I note the debate in relation to Clause 4 two days ago in this House.

It seems important to step back a little. At the heart of this new offence of treason is the question of allegiance or loyalty owed to this country by a subject or citizen of this country, or by someone who is settled here—settlement being a term of art in immigration law. Australia, Canada and New Zealand have responded to this challenge, albeit in slightly different ways. As recently as June, Australia legislated to deal with citizens or relevant others fighting Australian forces abroad. Many other countries have laws in relation to treason.

Let me make it clear that the creation of this new offence is not intended—nor would it act—as any brake on free speech or the right to express dissent or criticism of the Government in relation to any of their activities, and in particular their foreign policy or decision to wage wars. Criticism and overt expressions of dissent are part of a healthy democracy. However, such dissent should not extend, in effect, to waging war against your own country, whether in the United Kingdom or elsewhere, Nor should it include helping, planning or preparing an attack, giving military or other intelligence, or in any way assisting such attacks.

What is the scale of the problem? It is one with multiple dimensions, including British citizens or permanent residents who go abroad to fight with ISIS in Syria or with the Taliban, but also British citizens and others who help those groups or others who intend to attack the UK or fight UK forces in the UK itself. It is estimated that about 900 British terror suspects went to Syria and Iraq during the wars. Those who have not been killed, or who are not currently prisoners, have been described by our senior counterterrorism officer as a “big national security threat”. It is true that when they return they will—or should—face immediate arrest and questioning and will be encouraged to enter deradicalisation schemes. But it is said that prosecution will be difficult, particularly against the many women involved—the so-called brides of Jihad—who will or may claim duress or in other ways try and distance themselves from what others may have done.

What about Anjem Choudary, released from prison on 19 October, half way through his in my view inadequate sentence for supporting ISIS? Now he will be placed on a deradicalisation or anti-extremism course, and a considerable amount of our resources will be spent on monitoring his activities, having regard to the range and scope of his encouragement of so many other terrorists. What he did was undoubtedly a betrayal of his country. He acted as a recruiting agent for a group that intended to cause and has caused attacks on the United Kingdom, and which the UK faces abroad. He would be guilty of treason.

Should the authorities simply wait for a British citizen to commit serious offences—in other words, to wait for a returning traitor, as they seem to have done with Khalid Ali, a British citizen who spent five years serving with the Taliban in Afghanistan before returning to the United Kingdom in late 2016? Apprehended in Whitehall with knives in his possession, he was sentenced on 20 July to life imprisonment for preparing acts of terrorism, but he ought to have been prosecuted for treason as soon as his activities in Afghanistan came to light.

Then there is Rabar Mala, an Iraqi national who had remained in the UK unlawfully after his visa expired in 2008. He became the first person to be convicted for possession of property for the purposes of terrorism. He activated some 360 SIM cards for fighters in Iraq and Syria and co-ordinated ISIS communications. He was also planning possible attacks in the United Kingdom, inviting funds and personnel to be sent to enable an attack on a major civilian target. Being neither British nor a settled non-citizen, had Mala served ISIS outside the UK he would not have breached the offence I propose. But while voluntarily living among us he owed a duty of allegiance to the United Kingdom which he betrayed by serving ISIS, aiding its military and intelligence operations in Iraq and Syria and planning attacks on the United Kingdom. The offence for which he was convicted and sentenced to eight years manifestly fails to recognise the true nature of his wrongdoing or to provide adequate punishment for it.

May I say a bit about the drafting of this amendment? I am, as ever, indebted to the Public Bill Office for its swift and helpful engagement with my proposed amendment, although I was somewhat disappointed at the changes that it insisted I make to it—as I say, it was based on an Australian version of treason—in particular the scattering in the amendment of the word “terrorist”. This apparently was to bring the amendment within scope. If you are fighting or aiding the fight against the United Kingdom outside the United Kingdom or inside it, there does not seem to be a significant distinction.

It would be odd if a British subject assisting the fight abroad was not guilty of a terrorist attack whereas the domestic equivalent constituted one.

[Lord Thomas of Gresford (LD)]

Could the noble Lord help me? Is he saying that his amendment covers an attack on British forces operating outside the United Kingdom? I do not read it in that way.

[Lord Faulks]

It does not, which is why I was expressing regret at the final form of the amendment. If we are to return to this amendment, I shall seek perhaps to expand its scope—I hope not having an undue squabble with the authorities—so that it comes squarely within what the noble Lord suggests. If it is necessary to bring the amendment back with further refinements, they may include additional conduct which might be regarded as treason, such as impeding the operation of Her Majesty’s forces or prejudicing the security and defence of the United Kingdom.

Clearly, a prosecution under this offence would be no small thing. It would need the consent of the Attorney-General to bring a prosecution since it is an offence against the state. I also accept that many offences which might be regarded as treason would be caught up in all the many other terrorist offences on the statute book, and thus I would not expect it to make a frequent appearance. Nor would I claim that the existence of this offence would be a panacea, but there is a significant gap and filling it might avoid some of the complications, say, of the designated area offence in Clause 4.

Those who live and benefit from life in the United Kingdom yet involve themselves in attacks against the United Kingdom either here or abroad are surely guilty of treason. Are we too timid to call it that? Is it because allegiance to our country is considered unfashionable? If so, that seems to me to verge on the decadent, or at the very least it shows a country lacking in self-confidence. Those who reject the values of this country have the option of relinquishing their citizenship. But while they remain here or regard it as their home, surely they owe a duty to other citizens, who have their own human rights. This new definition of treason is a way of underlining that duty. I beg to move.

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[Lord Faulks]

My Lords, I am grateful to all noble Lords who participated in the debate, including those who put their names to the amendment. There were some interesting diversions via the prosecution of William Joyce; whether he was correctly convicted is a matter for considerable debate many years afterwards. In fact, I think that the matter went all the way to the House of Lords, and there were dissenting speeches. There is a view that the only thing he did wrong—that is, that amounted to a criminal offence—was filling in inaccurate information on a passport application, which would normally attract a fine. Having said that, I do not think that anybody felt that the result was in any way unfair.

The question of whether other offences are adequate has been referred to. I accept that a considerable range of different criminal offences can be committed by those involved in terrorist activity. However, I respectfully suggest to the Committee that there is something more. My noble friend the Minister said that such criminals should be regarded not as at war with the state, but simply as criminals. With great respect, they are more than that: they are at war with the state. They may use criminal activities to wage that war but they are more than criminals. For example, there are those who thought that the murder of Lee Rigby was murder on any basis, but those prosecuting felt that there had to be something more by way of marking the seriousness of the attack on not only an individual but the state itself.

Similarly, one thinks of the Skripal poisonings. That was an attack on individuals; it was also an attack on our state. I am afraid that I do not accept my noble friend the Minister’s distinction in that respect. However, I am grateful for her saying that the Government are looking into the question of whether offences that currently appear on the statute book adequately reflect the very real and ever-changing threats that this country faces. Of course, I am conscious that there is always a risk that those charged with treason might elevate themselves to martyr status. That point can be made but it does not sufficiently persuade me that there is no force in the creation of an offence of treason.

I accept entirely what was said by the noble and learned Lord, Lord Judge. It is not a happy state of affairs to have a criminal offence in the 1351 Act that cannot realistically be relied on and should be repealed; indeed, he said that in his introduction to the Policy Exchange paper. However, that does not mean that it ought not to be substituted with something modern that can capture, in rare cases, an offence of sufficient gravity which reflects a total contempt for the state beyond ordinary criminal activity.

I await with interest what the Home Office and the Government decide about the future of offences in this field. Of course, I will consider whether to try to persuade the Public Bill Office that the scope of my amendment could be expanded, perhaps to bring it back on Report. In the meantime, I repeat my gratitude to all noble Lords for taking part and I beg leave to withdraw the amendment.

Amendment 34 withdrawn.