My Lords, I am very grateful to my noble friend Lord Marlesford
for tabling this amendment, not least because it provides your Lordships with an opportunity to consider the Foreign Enlistment Act 1870—not something that we do every day, or night. The Act prohibits British nationals from fighting in the armed forces of another state, against friendly states. The new clause would go further by creating a new offence of participation in armed conflict against any foreign state at peace with Her Majesty. My noble friend’s amendment raises an important and topical issue: that of people from the United Kingdom seeking to engage in combat abroad in so-called “theatres of jihad”, such as the civil war in Syria, to which my noble friend referred.
Although the issue of British nationals fighting abroad is not a new one, or one specific only to Syria, it is something that the Government take very seriously. Syria is now the number one destination for jihadists anywhere in the world, and there are currently thousands of foreign fighters in Syria, including a large number of Europeans. We judge that more than 200 UK-linked individuals have travelled to Syria to join the fighting. Of course, not all individuals who travel to Syria are extremists. Many simply want to support humanitarian efforts. However, those who do travel there are putting themselves and innocent Syrians in danger, and we know that a number of Europeans have already been killed in the conflict. Moreover, we know that some individuals travel to Syria—or other places such as Yemen or Somalia—to engage in fighting with terrorist groups.
The Government are working with the police and security services to disrupt travel by individuals of concern. Your Lordships will understand why I am unable to provide specific details of all of the actions that are being taken to this end—but rest assured, we support the use of the full range of available measures. In particular, where there is evidence that individuals are planning, promoting, funding, facilitating or participating in terrorist activities overseas—including terrorist fighting—the police and Crown Prosecution Service will look to prosecute them, before they go or on their return. A very wide range of offences already exists on the statute books to capture such activity, not least in the Terrorism Acts 2000 and 2006, which provide extraterritorial jurisdiction in relation to certain activities. Although my noble friend’s amendment seeks to add a further offence to the disruptive arsenal, I fear that this amendment, as drafted, entails a number of drawbacks that would undermine its effectiveness.
Firstly, the amendment recognises that, while the 1870 Act already deals with fighting for another state’s armed forces, many modern conflicts involve an array of non-state actors and irregular militias. However, like the 1870 Act, this amendment deals only with,
“armed conflict against a foreign state at peace with Her Majesty”.
Hard distinctions of war and peace made sense in 1870; Tolstoy’s masterpiece had been published just the year before. But the bases for modern conflicts are no longer so binary. The UK has not been in a declared condition of war since the defeat of the Axis forces in 1945. Today we are at peace with all states, at least in the classical sense of international law.
Secondly, the defence of notification to the proposed new offence has the potential to severely undermine the disruptive utility. Whether it was my noble friend’s
intention I do not know, but the amendment as drafted gives the Secretary of State no additional power to prohibit a person who gives notice of their intention to fight overseas from going. A number of existing powers might be used to prevent such a person from travelling—and, of course, the Bill augments these by providing powers to seize passports cancelled on public interest grounds. But the amendment adds nothing to these powers. Indeed, the proposed offence bites only when a fighter who previously failed to notify returns to the UK. Anyone who does notify the Secretary of State would be completely free from the sanctions which this amendment seeks to put in place.
Thirdly, any offence that hinges on such a notification regime is likely to raise significant difficulties in enforcement. A committed jihadist is unlikely to inform the authorities of his travel plans for fear of disruption, either before or after the fact. Evidence that a person has engaged in fighting abroad would be extremely difficult to obtain, so the evidential difficulties in securing a prosecution may be no less than for the other relevant offences available.
Fourthly, although self-defence has a well understood meaning in relation to ordinary offences against the person, how it would apply in the context of overseas conflicts is unclear. Many jurisdictions have laws to deal with the use of defensive force in situations of immediate danger, and we expect British nationals to comply with local laws wherever they are. But the idea of participating in armed conflict as an act of self-defence is a difficult matter. We must take care not to legitimise the wrong-headed extremist narrative that paints so-called jihadists as fighting a war of self-defence on behalf of Muslims internationally.
Finally, the amendment proposes sentences for the new offence that could include forfeiture of a passport and deprivation of British citizenship. As noble Lords will recall from our discussion in Committee of what is now Clause 138, passports are issued under the royal prerogative. The Home Secretary already has the power to refuse or withdraw passports where she believes that a person’s activities—past, present or proposed—are so undesirable that the grant or continued enjoyment of passport facilities is contrary to the public interest. The British Nationality Act gives the Home Secretary powers to deprive persons of their British citizenship when she is satisfied that deprivation is conducive to the public good, provided that the person is not left stateless as a result. As such, these sentencing options would not be necessary.
I thank my noble friend Lord Marlesford for raising the issue of British nationals fighting overseas. I assure your Lordships that this is something that the Government take extremely seriously. Nevertheless, for the reasons that I have set out, I do not believe that the amendment would be the right way to proceed and I ask my noble friend to withdraw it.