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.

--- Later in debate ---

[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.